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Brexit, firearms and other laws

06.11.19 Investigating Death

 

Cases involving the death of a person can have a devastating impact on all concerned. From our perspective, we often deal with people facing the gravest charges after an incident causing loss of life. The gravity of the proceedings can have a devastating emotional impact on our client and their family.

At the same time, all parties will be acutely aware that those others will be grieving after loss and expecting the justice system to deliver some form of closure for them.

A complex issue that often arises is concerning the question of a second post-mortem, often essential so that the defence can probe and question any initial findings, seek out any error and test any alternative hypothesis.

On occasion, the causative issues surrounding death are not in dispute (for example in many road traffic cases) and the Coroner can arrange for the speedy release of a body so that funeral rites can take place. In other cases, the issues can be far more complex, particularly in cases involving infant death, or where complex case theories have been developed by the prosecution (such as alleged killings in a hospital or other environment).

In all cases, we act in the best interests of our client but do so in a considerate and sensitive way, as anyone would rightly expect. When a second post-mortem is necessary, we will request that it be undertaken as soon as practicable.

A particular problem that some suspects can face is the funding of second examinations pre-charge. Unless the suspect is eligible for legal aid, and a great many people are not at this stage of the proceedings, any investigation may need to be funded privately, or via a request to the Coroner. This is an issue that we feel urgently needs addressing as it can contribute to considerable delay, which is not desirable for anyone concerned.

The Senior Coroner issued long-overdue guidance concerning requests for second post-mortem examinations as recently as September 2019.

We keep such guidance very much in mind but will not hesitate to forcefully advance any case for a second post-mortem examination where we feel it is in our client’s best interests to pursue it.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Carys Parry on 01758 455 500 and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

28.10.19 Getting Tough on Health and Safety

 

A number of recent cases indicate an increasingly robust approach to health and safety law breaches.

Company Director Robert Harvey was imprisoned for ten months following an accident where a fellow worker was crushed to death by an excavator operated by Harvey. The prosecution established that Harvey had failed to undertake a sufficient risk assessment for employees working on the building project, had not had training in the correct operation of the excavator equipment and gave a dangerous instruction to a fellow worker. Harvey Robert Harvey pleaded guilty to breaching Section 7(a) and Section 33(1)(a) of the Health and Safety at Work Act 1974.

DHL, the global logistics firm was fined £2.4 million following a collapse of tyres that crushed to death an employee. Once again, the lack of a proper risk assessment was emphasised by the prosecution. A year earlier DHL had been fined £2 million for another significant health and safety breach.

Ferry Operator Stena Line was fined £400,000 following an incident where a worker suffered severe injury. The Health and Safety Executive commented:

"The injuries sustained...were easily preventable. The risks to pedestrians from moving vehicles is an obvious one which should have been identified and controlled. Had Stena Line Limited employed suitable control measures the life-changing physical and emotional injuries which continue to impact [the victim] and his family would have been avoided."

These cases demonstrate that liability can fall on both individuals and corporate bodies, meaning that everyone involved in company management must remain alert to their responsibilities.

For individuals a custodial sentence is a real possibility.

Financial penalties imposed on companies are intended to have real impact:

"The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation" (Sentencing Guideline).

In finalising the sentence, the court should have regard to the following factors:

• The profitability of an organisation will be relevant. If an organisation has a small profit margin relative to its turnover, downward adjustment may be needed. If it has a large profit margin, upward adjustment may be needed.
• Any quantifiable economic benefit derived from the offence, including through avoided costs or operating savings, should normally be added to the fine. Where this is not readily available, the court may draw on information available from enforcing authorities and others about the general costs of operating within the law.
• Whether the fine will have the effect of putting the offender out of business will be relevant; in some bad cases this may be an acceptable consequence.

We have a team of experienced solicitors able to assist you with any aspect of health and safety law, and it is important to involve us as soon as any investigation is commenced.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Michael Strain on 01758 455 500 and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

22.10.19 Stop and Search

 

The police, with the support of the Home Office, are making more extensive use of stop and search powers. This new approach is partly due to rising public and political concern about knife crime.

A hitherto little-used power to extend the use of stop and search is now being widely used by police forces.

Section 60 of the Criminal Justice and Public Order Act 1994 allows for stop and search powers to be exercised across a particular area, for a period of 24 hours (but see below). This power removes the usual restrictions on stop and search.

A section 60 order can be triggered if:

...a police officer of or above the rank of inspector reasonably believes -

(a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, that—

(i) an incident involving serious violence has taken place in England and Wales in his police area;
(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and
(iii) it is expedient to give an authorisation under this section to find the instrument or weapon; or

(b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason.

In August 2019 the government announced that a previously restricted use of section 60 was to be extended to all 43 police forces in England and Wales.

The statutory basis of section 60 searches is modified in several ways by 'best practice' guidance:

• Raising the level of authorisation for the initiation and extension of s60 powers to senior officer;
• Raising the level of suspicion from believing that, in the anticipation of serious violence, incidents involving serious violence will take place rather than may;
• ensuring that section 60 stop and search is only used where it is deemed necessary – and making this clear to the public;
• limiting the duration of initial authorisations to no more than 15 hours (down from 24); and limiting the duration of subsequent extensions to, first, 9 hours and, second, 15 hours to a total of 39 hours (down from 48); and
• communicating to local communities when there is a s60 authorisation in advance (where practicable) and afterwards, so that the public is kept informed of the purpose and success of the operation.

Despite the noble aims of a policy designed to reduce possession of weapons, there has been a concern that some communities will be disproportionately targeted as a result.

BAME and Black individuals in 2017/18 were four and nine and a half times more likely to be searched than white individuals. BAME individuals have also been found to be more likely to be dissatisfied than white individuals with the conduct of searches, according to analysis of CSEW data 2009-11. The number of BAME individuals searched has fallen dramatically between 2010 to 2018 (Searches of BME from 431k to 98k.) but disparities have risen as the number of white people searched has fallen more dramatically.

National data on s60 searches consistently shows that BAME individuals, and black individuals especially, are more likely to be the subject of s60 searches than white individuals. The likelihood statistics are calculated by comparing the ethnicity of those searched, based on their self-defined ethnicity, with the characteristics of the population as a whole, based on data taken from 2011 Census. In 2017/18, BAME individuals were just under 14 times more likely to be stopped and searched under s60 than white individuals.

In an equality impact assessment published this week, the government acknowledged this risk:

"In our assessment of the current use of s60, it was concluded that there was not sufficient grounds to discount the possibility of some level of discrimination - either towards individuals, or systematically in the policing of certain communities - as an explanatory factor for existing rates of disparity. As such, any increases in the use of s60 pose the risk of magnifying any residual levels of discrimination in the use of this power. We would also expect, given that individuals from BAME backgrounds are more likely to be searched, that any increases in s60 would continue to disproportionately affect them. We have no evidence to indicate whether disparity rates would increase or decrease following a relaxation of current arrangements."

The government proposes to keep the policy under review and assess the impact in 12 months.

It remains the simple fact that police powers must comply with all laws, as defence solicitors we will not hesitate to challenge the unlawful use of police powers, and seek evidential remedies in appropriate cases, this may include applications to exclude any evidence obtained as a result of illegal searches.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Michael Strain on 01758 455 500 and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

17.10.19 Public Order - New Sentencing Guidelines

 

New sentencing guidelines for public order offences come in to force for adults sentenced on or after 1 January 2020.

In August 2008, the Sentencing Guidelines Council published Magistrates’ Court Sentencing Guidelines (MCSG) guidelines on sentencing the offence of affray and summary offences relating to threatening and disorderly behaviour provided for by section 4, section 4A and section 5 of the Public Order Act 1986. There was also a brief reference to violent disorder offences which may be sentenced in magistrates’ courts. This guidance did not include guidelines for sentencing these offences in the Crown Court, and also did not include guidance on sentencing the public order offences of riot, or offences relating to stirring up racial or religious hatred and hatred based on sexual orientation.

The offences covered by the public order guideline are relatively high in volume. There were 18,600 offenders sentenced for the public order offences covered by the guideline in 2018. The volume of some offences is however relatively low, in relation to the offence of riot only 30 offenders have been sentenced in the last decade for which figures are available (2008-2018). Around 300 each year are sentenced for violent disorder, and 2400 for affray, the rest being sentenced for the lesser offences.

Will the new guideline affect sentence length?

For the offences of riot, violent disorder and affray, it is suggested that sentence length will not be affected.

For threatening behaviour and disorderly behaviour with intent, there have been some reductions to sentencing ranges and starting points for the different levels of offence seriousness, compared to the MCSG. It is possible that the decrease to sentence levels in the guideline could lead to a decrease in sentencing severity for these offences, whereby some individuals who currently receive a custodial sentence may now receive a community order. However, it is also possible that much of the decrease in sentencing severity could come from offenders currently receiving suspended sentence orders now receiving community orders. Therefore there is an upper estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and a lower estimate that the guideline could lead to a reduction in the requirement for up to 30 prison places per year and a small increase in the use of community orders.

For racially or religiously aggravated threatening behaviour and racially or religiously aggravated disorderly behaviour with intent, sentencers are first asked to sentence the basic offence, and then increase the sentence considering the level of racial or religious aggravation involved. This ‘uplift’ approach reflects Court of Appeal guidance on how aggravated offences should be sentenced, and aligns with current practice in relation to assessing the level of aggravation present in offences. This is the same process as used in the Council’s Arson and Criminal Damage guideline, where the consultation stage research found that there was a risk that the guideline could result in slightly higher sentences. It is therefore possible that the guideline could cause an increase to sentencing severity. However, some of the starting points and sentence ranges for the basic offence are lower than under the current guideline, which could offset these potential increases. Therefore there is a lower estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and an upper estimate that the guideline could lead to a requirement for up to 40 additional prison places per year and a small decrease in the use of community orders.

For the offences of disorderly behaviour and racially or religiously aggravated disorderly behaviour, the maximum sentence is a fine and therefore the guideline will not have an impact on prison and probation resources. For the offence of disorderly behaviour, the guideline introduces a new higher category of offending with a higher level of fine than in the existing MCSG guidance (a Band C fine). The guideline may therefore increase fine values for this offence. Also, because a fine is included for all levels of offending for racially or religiously aggravated disorderly behaviour - whereas data suggests that around 12 per cent of offenders sentenced for this offence received an absolute or conditional discharge in 2018 (after any reduction for guilty plea) – it is also possible that the guideline could increase the number of offenders sentenced to a fine for this offence.

As ever, our advocates will be vigilant to ensure full adherence to the guideline and act to prevent any ‘sentence creep’ which is something that we have observed with other guidelines.

(Image credit: Tomasz Iwaniec; creativecommons.org)

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Rhys Tudur on 01758 455 500 and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

08.10.19 Diplomatic Immunity

 

The somewhat arcane topic of diplomatic Immunity has hit the news headlines following the tragic death of 19-year-old Harry Dunn, as a result of a road traffic collision.

It has been confirmed that the wife of an American diplomat has returned to the United States and will not face a further criminal investigation in the UK, after asserting a claim for diplomatic Immunity.

Despite a plea by the Foreign Secretary for Immunity to be waived, so far, the US Government has refused.

What is Diplomatic Immunity?

Diplomatic Immunity, and like procedures, is a protection afforded to foreign diplomats, consular officers, Heads of State (and other leaders) and often their families.

At any given time, over 20,000 people in the UK have a claim to Immunity.

Diplomatic Immunity can protect the individual from civil and in some cases, criminal liability. The rules are very complex, and protections may vary.

Article 29 of the 1961 Vienna Convention on Diplomatic Relations states:

"The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity."

Why Is It Offered?

Diplomatic Immunity is designed to protect the sovereignty of foreign governments when conducting official business abroad and acts to protect individuals against a legal process which may be malign or otherwise unfair.

Its origins are rooted in many international treaties and enshrined in UK law via Section 2 of the Diplomatic Privileges Act 1964.

Can Immunity be Waived?

Diplomatic Immunity can be waived by the State but not the person themselves (although there was a recent case in another jurisdiction where this apparently occurred), this means that unless the US Government has a change of heart, that is the end of the matter so far as UK criminal proceedings are concerned.

Where the matter involves an alleged commission of a serious criminal offence, the UK Government will in some instances expel that person from the UK and refuse them future entry.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Bethan Williams om 01758 455 500 and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws02.10.19 Conservatives Signal Tougher Sentencing Regime

 

At the Conservative Party Conference this week, the government indicated that it was to get tough on offenders who commit some of the most serious offences, with automatic release at the half-way point being removed in many cases.

Figures for 2018 disclose that for the most serious sexual and violent offences (those that carry a maximum sentence of life imprisonment), the following sentence types were imposed:

• Over 4000 Standard Determinate Sentence – the offender will be automatically released at the half-way point in this sentence and be on licence in the community for the second half of the sentence. Those serving short sentences will have additional supervision in the community for a minimum period of 12 months.
• Around 250 Extended Determinate Sentences – offender becomes eligible to be considered for release by the Parole Board from the two-thirds point but can serve the full term in prison if not assessed to be safe to release earlier. The custodial term is followed by an extended period on licence for on-going public protection (of up to eight years for sex offenders and five years for violent offenders).
• Four hundred life sentences – offender spends minimum period or "tariff" in prison before being considered for release by the Parole Board. The offender may therefore never be released. If released, offenders spend the rest of their life on licence and can be recalled to custody.

The government plans to remove release at the half-way point for those sentenced to standard determinate sentences, and instead keep offenders in prison until the two-thirds point, after that releasing them with tougher licence conditions.

When will the changes take effect?

This proposed change will require legislation and will feature in the forthcoming Queen's Speech as part of the government's law and order agenda.

Assuming that this change passes into law it is likely to be mid-2020 before it is implemented.

Will any change be retrospective?

There are complex issues in relation to retrospective release provisions, and we would not expect the change to be retrospective.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Carys Parry on 01758 455 500 and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

26.09.19 Delayed Justice

 

Janet Commins was born on 9 June 1960. On 7 January 1976, shortly after 7.00 pm, she left her home in Flint to meet friends at the local swimming baths. She left a note for her parents, as she often did, to say that she would be back at around 8.30 pm. She saw her friends at the baths and was sighted close to her home in the company of two teenage boys at about 8.10. At some time between 8.15 and 8.45 she called to see a friend who lived a few doors away from her in her own street. She was told they were not in. After 9.00 pm, when the baths were closed, Janet's parents became increasingly concerned and at 11.00 pm they reported her missing. On the following morning children playing on rough ground adjacent to Gwyneth Primary School found Janet's body concealed in bushes.

Stephen Hough had just turned 17 and was interviewed by the police. Following an admission that he made to his girlfriend, he was charged with murder.

The admissions Hough made were denied during the investigation process, and he did not have the legal protections that are now available to suspects.

On the third day of his trial, he changed his not guilty plea to murder to one of guilty of manslaughter. That plea was acceptable to the court, and he was sentenced to 12 years imprisonment. Regrettably, however, that was not an accurate indication of guilt.

As there was a possibility of a second offender, the enquiry was left open, and in 2017 a second man was convicted of sexual assault and the manslaughter of Janet.

The forensic evidence in the case, not available when Stephen Hough was charged, disclosed that Hough was not guilty of any crime, there had been a lone attacker, and that person was not Stephen Hough.

In January 2019 the Court of Appeal quashed Hough's conviction commenting:

'... the appellant can leave court wholly exonerated of involvement in this terrible crime.'

'Our system of criminal justice is, of course, human and errors can be made however strenuous the efforts to ensure that evidence is properly and appropriately collected and placed before the court.

The pressures of being interviewed by the police are clearly real and the protections introduced by the Police and Criminal Evidence Act 1984 have done much to address, to such extent as it is possible, the pressures on those arrested and being interviewed.

In this case, however, it is clear that a serious injustice was done for an innocent man felt constrained to admit a grave criminal offence, not sharing the true position with his own legal team.

Many years have passed since he was released from prison but we hope that the quashing of his conviction and the contents of this judgment start to address the injustice that was done to him.'

The Issue of Delay

Ordinarily, appeals must be lodged within a relatively short period following trial, and late requests often stand little prospect of success.

This extraordinary case illustrates exceptions to that rule, particularly where modern forensic techniques lead to the clear conclusion that the convicted person is innocent.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Michael Strain on 01758 455 500 and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

17.09.19 The Cut-Throat Defence

 

A cut-throat defence is where one defendant gives evidence that is damaging to a co-defendant's case, sometimes going as far as directly accusing the other person of the crime, while typically seeking to exonerate themselves.

Such evidence may be given directly by a defendant (or more than one in some cases) as a positive aspect of their case or elicited by prosecution questioning. Either way, it can make for an uncomfortable moment during the case when one defendant is pitted against another, particularly if issues of bad character arise because of it.

The conventional view is that cut-throat defences rarely end well, although in reality, that is a generalisation too far, and the outcome will always depend on a multitude of factors.

Where a cut-throat defence is anticipated or encountered, thought will be given to the issue of severance - or separate trials. These applications are not always successful in practice, as explained in Varley [1982] 2 All ER 519:

'The other ground put forward was that the judge wrongly exercised his discretion by refusing to order separate trials. We recognise that there may well be occasions where there has been a successful application to cross-examine a co-defendant on his convictions and the trial judge, in his duty to ensure a fair trial, may properly exercise a discretion to order separate trials. We have in mind the situation whether the effect of such cross-examination is such as to create such undue prejudice that a fair trial is impossible. But that is not this case. The truth of the matter is that this was a case where two experienced criminals metaphorically cut each other's throats in the course of their respective defences. If separate trials had been ordered, one or other or both might have succeeded in preventing a just result.'

While a separate trial may not seem a likely outcome, some lawyers mistake the case law to such an extent that they rule out the argument completely; we feel that to be an inadequate approach and ensure that scrutiny is applied in all instances (see cases such as R v O'Boyle (1991) 92 Cr App R 202).

Relevant arguments will centre around:

1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against the other accused to be jointly tried with him, and

2. Where the evidence against those other accused contains material highly prejudicial to the applicant though not admissible against him, and

3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material.

At the opposite end of the spectrum, it may be the case that you have to run a cut-throat defence and consideration will have to be given to the consequences, both positive and negative, of doing so.

Criminal litigation is increasingly complex, and you must instruct a legal team able to work through all the issues that might arise and provide a strategy for dealing with them. The emphasis is always on proactive rather than merely reactive trial strategies.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Rhys Tudur and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

17.09.19 More Sentences at Risk of Prosecution Appeal

More Sentences at Risk of Prosecution Appeal

The prosecution, via the Attorney General, has the right to ask the Court of Appeal to consider whether sentences for certain offences are unduly lenient.

How does the scheme work?

Anyone can ask the Attorney General to consider whether a sentence is unduly lenient. If the Attorney agrees an appeal will be lodged within 28 days of that sentence and the court will consider the matter.

This scheme is essential protection against sentences that are too lenient.

Can it be used for any offence?

There is a list of offences that the scheme applies to, it is a relatively extensive list, but the government has announced that further offences are soon to be added to it.

How often are appeals lodged?

The Attorney General does not invite the court to interfere lightly, even though around 1,000 requests for a review are made each year only a fraction are referred to the court, and typically between 100-150 sentences are increased each year.

In all cases where an appeal is heard, we fight extremely hard to prevent any increase in sentence.

What offences are to be added to the list?

The following offences will be added in the next few months:

• Abuse of position of trust: sexual activity with a child (s.16, Sexual Offences Act 2003),
• Abuse of position of trust: causing or inciting a child to engage in sexual activity (s.17, Sexual Offences Act 2003)
• Abuse of position of trust: sexual activity in the presence of a child (s.18, Sexual Offences Act 2003)
• Abuse of position of trust: causing a child to watch a sexual act (s.19, Sexual Offences Act 2003)
• Inciting a child family member to engage in sexual activity (s.26, Sexual Offences Act 2003)
• Sexual activity with a person with a mental disorder impeding choice (s.30, Sexual Offences Act 2003)
• Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity (s.31, Sexual Offences Act 2003)
• Engaging in sexual activity in the presence of a person with a mental disorder impeding choice (s.32, Sexual Offences Act 2003)
• Causing a person, with a mental disorder impeding choice, to watch a sexual act (s.33, Sexual Offences Act 2003)
• Possession of indecent photograph of a child (Criminal Justice Act 1988, s.160)
• Taking, possessing, distributing, publishing Indecent Photographs of Children (s.1 Protection of Children Act 1978)
• Harassment: putting people in fear of violence (s.4, Protection from Harassment Act 1997)
• Stalking involving fear of violence or serious alarm or distress (Protection from Harassment Act 1997, s.4A, Protection from Harassment Act 1997)
• Controlling or Coercive Behaviour in an Intimate or Family Relationship (s.76, Serious Crime Act 2017).

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Carys Parry and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

06.09.19 Airports, Planes and Alcohol

It has been reported in the press that 500 people have been arrested while drunk on a plane at British airports in the last three years.

For many people a holiday begins once cases have been checked in, and what is the harm in that?

It is clear that drunkenness has become an issue. The government has been asked to take steps to address licencing in airports, especially as the airport bars are currently exempt from certain restrictions.

Airlines are also taking action in an attempt to reduce the risk. As an example, on some flights you may be prevented from taking any alcohol on board in hand luggage to assist airline staff in controlling levels of alcohol consumption.

What are the alcohol laws at airports?

Regular licensing laws do not apply at airport bars located on the airside of security.

In November 2018 the government consulted on a proposal that these bars be subject to the same licensing rules as bars outside of airports. As yet, however, no new legislation has been introduced.

What is being done?

The UK airline industry voluntary code of practice adopts a zero-tolerance approach to disruptive behaviour. Signatories to the Code work together to prevent and minimise incidents, the commitments cover the sale and consumption of alcohol. In essence, to mimic the regular licensing laws by, for example, not selling alcohol to intoxicated clients. The Code, however, is a voluntary one.

The ‘One Too Many’ campaign aims to reduce airport drunkenness with 20 airports using the campaign to alert passengers to the potential consequences of drunken or disruptive behaviour.

What are the potential consequences?

The campaign refers to passengers deemed unfit to fly and denied boarding, prison sentences, fines for causing a deal or causing a mid-air incident requiring a diversion and an airline ban.

What offences could be committed?

Although the figures that have been obtained are for detained persons noted to be intoxicated, the actual offending could vary.

Offences that can be committed include being drunk on an aircraft, possession of a dangerous article, smoking onboard, endangering the safety of an aircraft and acting in a disruptive manner.

Could I go to prison?

The simple answer is yes. The courts have said that being drunk on an aircraft will usually result in an immediate custodial sentence even for someone of previous good character. To commit an offence of being drunk on an aircraft a person simply has to be drunk, they do not also have to be disruptive. The offence can be dealt with at the Crown Court and carries up to 2 years imprisonment, the same penalty applies to people acting in a disruptive manner on an aircraft or endangering the safety of an aircraft.

Other offences may not result in imprisonment, but financial penalties can be imposed.

Being drunk may result in you being denied boarding, and the subsequent loss of a holiday, so even if not arrested there may well be a high price to pay.

Does it depend if I am on a UK airline?

The UK has jurisdiction to deal with any offences committed on board any aircraft on the ground, or in the air, over the UK. There are also international conventions that mean offences committed in the skies anywhere are subject to a local jurisdiction – it is complicated and hopefully you will never have to worry about the legal nightmare that will unfold if you are arrested in a foreign jurisdiction.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Bethan Williams on 01758 455 500 and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

22.08.19 Sentencing and Delay -
Can it work in your favour?

There have been widespread reports in the press about spare courtroom capacity, with judicial sitting days at an all-time low. These reports correspond to our own experience.

When court delay is combined with significant delays in investigating and charging defendants to court, this can mean a very long period between the commission of any crime and sentencing.

As advocates, we are increasingly concerned with the effect of delay on the people we represent and can deploy several legal principles in an attempt to mitigate the sentence passed.

On occasion, this can work in our client's favour, either reducing the length of the overall sentence, allowing a custodial sentence to be suspended where it would not otherwise be, or by justifying a non-custodial sentence in circumstances where custody would be the norm.

What does the law say?

In Prenga [2017] EWCA Crim 2149 the court held:

"We start by considering the nature and extent of the discretion to adjust otherwise lawful sentences where required to achieve justice. It is, in this regard, well established that a sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. The paradigm illustration flows out of the requirement in ECHR art.6 that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one."

In Dyer v Watson; K v HM Advocate[2004] 1 A.C. 379; [2002] 3 W.L.R. 1488 Lord Bingham of Cornhill observed that in any case in which it was contended that art.6 was violated by virtue of delay the first step was to consider the period of time which had, in fact, elapsed.

Unless that period gave grounds for real concern it was almost certainly unnecessary to go further "… since the convention is directed not to departures from the ideal but to infringements of basic human rights".

The threshold for proving a breach of the reasonable time requirement was a high one "not easily crossed"

In Mills (Kenneth Anthony) v HM Advocate (No.2) [2004] 1 A.C. 441 Lord Hope (at [54]) recognised that delay could in an appropriate case justify an adjustment to sentence. One possible rationale for this is the anxiety experienced by a defendant, resulting from the abnormal prolongation of proceedings. Another possible explanation might be that a defendant's life has changed during the period of delay such that the person who stands to be sentenced is, in terms of character, not the person who committed the offence.

In Attorney Generals Reference No.79 of 2009 [2010] EWCA Crim 338 it was held (per Hughes LJ VP at [19]) that delay:

"… is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly a conviction occurs"."

The judge, nonetheless, emphasised that applications for reductions in sentence would be "unusual". The authorities relating to delay and art.6 demonstrate that unnecessary delay can amount to mitigation resulting in reduction of sentence but, also, that questions of delay are instances of "… the broader question of what a just sentence is". It follows delay, whilst perhaps being a paradigm example, is not exhaustive of the categories of case in which a sentence might be mitigated in order to ensure overall justice.

In R. v Kerrigan (David Joseph) [2014] EWCA Crim 2348, the Court of Appeal was required to consider broad questions of justice in the context of custodial sentences ordered to be run consecutively to existing sentences.

In para [40] of the judgment the court set out seven principles which might apply where a court was imposing sentences for different offences and where they might apply concurrently or consecutively leading to potentially arbitrary results.

For present purposes the seventh principle is relevant and was formulated in the following way:

"a judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly".

In all cases we will ensure that the impact of any delay on your case is fully explored in order that this can be reflected during sentencing.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Michael Strain on 01758 455 500 and let us help. We can advise on all aspects of your case.


Brexit, firearms and other laws

20.08.19 Brexit, firearms and other laws

As the government prepares to bring us out of the EU on 31st October 2019, details have begun to emerge as to the legal and regulatory position if we leave without a deal.

Some of the first information released relates to firearms, although it regrettably raises more questions than it answers.

Given the importance of complying to the letter with firearms laws both here and abroad, those affected must take steps to keep up to date, and this may involve quite close monitoring over the next few weeks. The same is true in relation to other areas of regulatory and criminal law compliance.

What is the current situation?

A UK resident who wants to travel to the EU with their shotgun or a firearm can apply for a European Firearms Pass. This is a licence, or passport, that allows travel between member states, you must also have a licence from the UK to hold the firearm. Depending on the country you are travelling to, there may be other documents required. All weapons have to be declared to customs and also to the travel company you are using for transport.

What will change?

If the UK leaves the EU without a deal, you will no longer be able to apply for a European Firearms Pass.

What will happen instead?

You will need to check the firearms licensing requirements of the country, before travelling.

This will also apply if you are in an EU country with the firearm with a European Firearms Pass at the time the UK leaves the EU.

What about visitors to the UK?

If you are sponsoring a visitor from the EU, who wants to bring a firearm to the UK, you need to apply to the local UK police force for a visitor’s permit. A permit that is issued before the UK leaves the EU remains valid until it has expired.

Once the UK leaves the EU, the European Firearms Pass will no longer be recognised for EU visitors to the UK. Sponsors of visitors will not need to show a valid Pass.

What should I do?

It is not yet known whether the UK will leave the EU without a deal in October. If you intend to travel with your firearm, it is advisable to check the licensing requirements of the country that you are visiting as countries have varying lead times for applying for licences. Without a proper licence, you may not be allowed to travel with your firearm.

If you are concerned with any aspect of regulatory criminal law and Brexit then get in touch for advice on the latest position.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Carys Parry on 01758 455 500 and let us help. We can advise on all aspects of your case.


Ten years for a double killing - look behind the headlines

20.08.19 Ten years for a double killing - look behind the headlines

In a truly tragic case, Samantha Ford drowned her 23-month-old twins in the bath.

Appearing at the Old Bailey for sentence, the Judge, Mr Justice Edis, handed down a 10-year sentence, causing widespread outrage. Longer sentences are routinely handed down for drug dealing and other crimes.

To understand more about this case, we need to look beyond the headlines and examine the facts more carefully.

The killing was carried out to avenge her husband calling time on their marriage. Ford was suffering from a significant psychiatric illness which the defence team explored in detail. The medical evidence ultimately led to a plea being accepted to manslaughter due to diminished responsibility.

A conviction for murder will attract a life-sentence but sentencing for manslaughter will typically attract lower sentences.

There is also a massive clue in the defence deployed in this case, 'diminished responsibility'.

It is clear that in large part, this crime was due to Ford's unbalanced mind at the time of the killing.

While the Judge did pass a 10-year custodial sentence, that is not the full picture when it comes to sentencing in this case. The complete sentence passed is referred to as a Hybrid-Order.

Hybrid-Orders comprise mental health treatment, followed by a custodial term to reflect some degree of liability.

Ford was sentenced to a hospital order with a limitation direction, which means that she will be detained in a secure medical facility until such time it is safe to release her from that part of the sentence.

It could be a great many years before this happens.

When Ford is released from medical care, she will then have to serve the unexpired part, if any, of the 10-year sentence (with release half-way through as for any other prisoner) and remain on licence in the usual way.

Cases such as this one illustrate the fragility of the human mind. What drives an otherwise loving mother to kill her two young children is beyond the comprehension of most people.

Samantha Ford is not a danger to the broader public; she was and is a very poorly lady who will be haunted for the rest of her life with the tragic events that unfolded. First and foremost, she requires and will receive urgent medical help.

As specialists in criminal law, we are trained to recognise medical defences and ensure that the full picture is presented to the court.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Bethan Williams on 01758 455 500 and let us help. We can advise on all aspects of your case.


Can the police use a statement you make in family proceedings to investigate, and possibly prosecute you for an offence?

20.08.19 Can the police use a statement you make in family proceedings to investigate, and possibly prosecute you for an offence?

That was the key question in M (Children) [2019] EWCA Civ 1364, where the police asked the court to disclose statements made by two people under investigation for terrorism offences.

The appeal concerned issues about the disclosure of that information, and the parent’s rights to silence and against self-incrimination. This is not a new area of law, but this case reviewed the previously established principles and considered whether they were still compatible with aspects of human rights law.

What had M’s parents done?

This was a case of alleged terrorism offences. The police had asked for disclosure of two position statements from the court to aid their investigations. The police information was that the parents had travelled to Syria and lived there for four years when Foreign and Commonwealth Office advice was not to do so, and also while ISIS active in the area.

The Home Office had made the father the subject of a Temporary Exclusion Order; an order made to disrupt the return of British citizens to the UK where they are suspected of taking part in terrorist activity abroad.

The right to silence?

English law has long recognised the right of a person not to answer questions put to them by an investigating body, often the police. Although this right was eroded at the end of last century, so that it is now possible for a jury to draw an adverse inference from that silence, it is still the generally applicable rule.

In this case, as was their right, the parents refused to answer questions put to them by the police.

The privilege against self-incrimination?

An even longer-established right than that of silence is the privilege against self-incrimination. This is the right in civil proceedings not to make an admission that would expose you to criminal liability. It is, in fact, more comprehensive than that and allows silence in the face of questions that would expose you to any penalty.

The Children Act 1989 makes an exception and disapplies the rule in care proceedings such as those in this case. There is a proviso that any information given in those proceedings is not admissible as evidence in a subsequent criminal trial. Effectively sidestepping the rule but with the same effect that no prosecution will occur based on the admissions alone.

When can a statement in family proceedings be given to the police?

The general position is that material created for family court proceedings is private, but it made be disclosed where the court gives its permission.

Just because there is a bar on those statements and admissions being used as evidence does not mean they cannot be disclosed to the police. The police would use them to further a chain of inquiry leading to different evidence, possibly of the same facts.

Defendants and others can, of course, refuse to answer questions in an interview based on those statements. Instead of risking an adverse inference as usual, those questions are inadmissible as evidence entirely. They are, therefore, purely investigatory.

Questions which are put based on evidence gathered from the disclosed statements are in a greyer area. They are subject to the usual provisions that evidence should not be admissible if it is unfair; it will be for any trial judge to weigh the circumstances as a whole.

When will that material be disclosed?

The test is set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76. The court set out ten of the factors to take into account, but ultimately, all the circumstances are likely to be relevant.

The relevant circumstances are - the interests of the child; the interests of other children generally; the maintenance of confidentiality in child proceedings; the importance of frankness in child proceedings; public interest in the administration of justice; public interest in prosecution of crime; the gravity of the alleged offence; inter-agency cooperation; fairness to the person accused and incriminated by the statement; and any other material disclosure that has occurred.

The court in M confirmed that this was good law. In the event, the parents’ challenge failed because the statements disclosed did not actually contain any admission of criminality, simply a description of normal life in Syria away from any conflict.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Michael Strain on 01758 455 500 and let us help. We can advise on all aspects of your case.


Women in Prison

30.07.19 Road Safety Review – More New Laws?

The Government has published new plans to make the roads safer for everyone. The plans include several changes for people at every stage of life, and also for more specialised drivers like HGV drivers and motorcycle riders.

Children

The Department for Transport has granted funding of £225,000 to Good Egg Safety to develop a training course for fitting child seats. This is in response to information that most parents don’t know how to install a child seat in their car correctly.

Additional funding will go towards developing educational resources for schools and researching road safety for children with special education needs.

Young Adults

The largest at-risk age group on the road is young adults, so the Department for Transport is considering ways to make young drivers safer. This includes consulting on several new learning and licence schemes; the potential use of Graduated Learner Schemes pre-test, and Graduated Driving Licences post-test.

These schemes and licences are used already in the USA, Canada and Australia. The pre-test scheme imposes requirements for a learner before they can take their test, usually a certain number of hours of instruction. The post-test scheme involves restrictions on a new licence for several years or until a certain age.

In California, for example, new drivers under eighteen cannot drive unsupervised at night, carry passengers under 20 unless supervised, or use mobile phones including hands-free devices.

One change along these lines recently in the UK was for the revocation of a new driver’s licence, meaning they have to re-sit their test. This revocation applies if six penalty points are acquired within two years of their test

Driving tests will also continue to be updated to take into account technological changes, similar to the recent move to include satnav driving in the test.

Adults

The Government will consult on the use of penalty points for people who don’t use their seatbelt, as well as the current fine. This consultation comes as a result of 27% of fatalities on the road in 2017 involving people not wearing a seatbelt.

Portable breathalysers are being developed, meaning police officers will be able to take a sample that is good enough for court proceedings at the side of the road. At the moment a preliminary test is taken by the roadside and an official test has to be taken at the police station. The proposal would free up officers for other duties quicker.

The Government is also researching the feasibility of ‘alcolocks’. This is a device which immobilises a car until someone under the limit blows into a tube. These would be introduced for those convicted of drink-driving to try and prevent re-offending.

New cycling offences are also being considered so that those who cause serious harm can be dealt with in a similar way to those who cause serious harm by driving.

Elderly

The second-largest at-risk age group on our roads are the elderly; the Government will continue to fund Mobility Centres for those who are unable to drive, most of whom are sixty-five or over.

Safety tests will also be updated to use old-age crash test dummies, as well as female dummies. This is in a bid to reduce injuries in those groups by allowing cars to be designed differently.

A consultation will also be launched into whether to require drivers to undertake mandatory eye tests at seventy, and upon licence renewal every three years thereafter.

HGV Drivers

Drivers who drive for a living are already tightly regulated by the use of tachographs and more stringent testing. The Government will consult on banning tyres older than ten years, as well as on changes to side guards, which protect pedestrians and cyclists if the HGV changes direction while alongside someone.

Motorcyclists

The Government will develop a new training regime for bikers, including a compulsory theory test before they can ride on the road, and changes to the current CBT (Compulsory Basic Training). They also plan to develop post-test training further and increase the uptake of this Enhanced Rider Scheme.

Better protective equipment is also under development, and the SHARP system of rating helmets is being continued and improved. The Government are also working with the UK protective clothing industry to understand how to encourage riders to wear the best equipment.

How we can assist?

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Bethan Williams on 01758 455 500 and let us help. We can advise on all aspects of your case.


Women in Prison

23.07.19 Prison rehabilitation and employment

Recently the government announced incentives for prisoners in custody focussing on positive reinforcements. In doing so, the longer-term aim is to assist rehabilitation and prevent re-offending.

A further announcement has been made on the same theme, and this is to assist ex-offenders in obtaining employment by removing the barriers once they have left prison.

What is the government doing?

Legislation will be passed that changes the circumstances in which certain convictions need to be declared to potential employers.

The current position

Currently, if a conviction is ‘unspent’ it will usually have to be declared, and whether a conviction is spent depends on the amount of time that has passed. The longer the sentence, the longer it takes for it to be spent.

All sentences from a fine to imprisonment have specified periods of time attached before they can be considered as spent, and that length also depends on the age of the offender.

Certain spent convictions also need to be disclosed for certain jobs.

What will change?

Currently, an ex-offender who committed an offence as a child and received a sentence over four years will still be required to disclose that conviction as an adult, even if he has not committed any other offences since then. The legislation is aimed at removing this sort of situation, which is clearly disproportionate.

Certain sentences that are over four years long will not have to be disclosed after a specified time has passed. In addition, the time periods, that will be known as ‘rehabilitation periods’, will be shortened for other sentences such as periods of imprisonment of fewer than four years and community sentences.

Will this include all offences and sentences?

Certain violent, sexual or terrorism offences and life sentences are likely to be excluded from the new legislation. Sensitive roles, such as those that involve working with vulnerable adults or children, will continue to be subject to separate and more strict rules.

Will it include all offenders?

Only those who have stopped offending will likely be entitled to regard the convictions as spent. If an ex-offender does go on to re-offend during the ‘rehabilitation period’ they will have to tell their employer about the older conviction and any new ones.

What are the new time periods?

These are yet to be decided on, and the government will be consulting with other agencies in the criminal justice system and relevant bodies before making a final decision.

Why is this being done?

Statistics show that ex-offenders can find it very difficult to find employment once they are released and that many employers will not employ ex-offenders. Only 17% of ex-offenders find work within a year of their release.

It is known that the longer a person can go without re-offending the more likely it is that they will not re-offend at all, and having employment can play a large part in a person not re-offending.

What happens next?

Following the government consultation referred to above, there will be a detailed outline of the proposals produced. The Supreme Court recently gave a judgment on the rules for the more sensitive roles and government are to consider and respond to this.

If you need specialist advice, then get in touch with Michael Strain on 01758 455 500 and let us help. We can advise on all aspects of your case.


Women in Prison

17.07.19 Data Protection - A Shifting Focus

Over the last few years, we have seen many matters that would previously have been prosecuted before the criminal courts, move into the jurisdiction of other bodies.

What we see as a result is a range of specialist regulators best placed to react to perceived industry failings, and if necessary, meet out swift and condign punishment.

As criminal lawyers, we too have kept pace with those changes, where once we would have defended tachograph cases in the local magistrates' court, we now support vehicle operators before traffic commissioners. The alleged 'crimes' are the same, but the enforcement regime entirely different.

Last week we saw the Information Commissioner's Office ('ICO') issue notices of intention to issue fines to two large companies.

British Airways is to be fined £193.39 million and Marriott Hotels more than £99 million. In each case, there was a large-scale breach of data protection (in one case involving over half a million users), and these fines reflect not only the extent of the breach but also an early indication as to a stronger line being taken under the new GDPR regime.

Information Commissioner Elizabeth Denham said:

"People's personal data is just that – personal. When an organisation fails to protect it from loss, damage or theft it is more than an inconvenience. That's why the law is clear – when you are entrusted with personal data you must look after it. Those that don't will face scrutiny from my office to check they have taken appropriate steps to protect fundamental privacy rights."

Another striking feature of these two cases is the international approach to data breach, explained here by the ICO

"ICO has been investigating this case as lead supervisory authority on behalf of other EU Member State data protection authorities. It has also liaised with other regulators. Under the GDPR 'one stop shop' provisions the data protection authorities in the EU whose residents have been affected will also have the chance to comment on the ICO's findings."

Whatever your business or profession, we make it our business to protect your interests and our specialist teams are fully up to date with all practice, procedures and emerging trends.

How we can assist?

If you need specialist advice, then get in touch with Carys Parri on 01758 455 500 and let us help. We can advise on all aspects of your case.


Women in Prison

17.07.19 Prisoner Benefits and Incentives

Over the next six months, benefits and incentives for prisoners are undergoing a change.

New rules place emphasis on positive reinforcements – praising prisoners for behaving well – rather than punishment.

The new Policy sets out the rules and guidelines for Governors and Directors of prisons but leaves a lot of freedom for them to take sensible policy decisions at a local level.

Incentive Levels

The new scheme has three levels, with the option for Governors and Directors to add more levels if they want.

The previous ‘Entry’ level has been removed so that new prisoners are not alienated by their status upon arrival.

Basic level is for those prisoners who have not abided by the behaviour principles. To be considered suitable for progression from Basic, prisoners are expected to adequately abide by them. This level includes only the basic legal entitlements.

Standard level is for those prisoners who adequately abide by the behaviour principles, demonstrating the types of behaviour required. This is the level all prisoners start on and includes more incentives such as possible in-cell TVs and more visiting hours.

Enhanced level is for those prisoners who exceed Standard level by abiding by the behaviour principles and demonstrating the required types of behaviour to a consistently high standard, including good attendance and attitude at activities and education/work and interventions. This might include access to games consoles and other high-level rewards.

Guidance on the behaviour principles is given, but Governors and Directors are able to modify the principles to deal with local challenges.

The example categories are: be respectful of staff and other prisoners, comply with rules and compacts, make progress on personal goals and on your sentence plan, and refrain from using drugs and alcohol.

All prisoners will start on the Standard level and will be reviewed at least once a year. Reviews can be held at any time and are held more often for Basic level prisoners at once per twenty-eight days.

Serious incidents will trigger and immediate review with a presumption that they will be demoted, and prisoners must also be reviewed within a week of being demoted to Basic level.

The focus here is very much on helping prisoners understand why they have been demoted and giving them the tools to improve their behaviour. Basic level prisoners must be told the steps required to return to Standard level.

Incentive levels also have an impact on the items and clothing a prisoner can possess. Basic prisoners are restricted to ‘List 1’ items, the minimum requirements. Higher prisoners might be able to possess more of something like cash, bring in their own clothes, or even have a pet bird.

Incentive Forums

Acting upon a recommendation from the 2017 Lammy Report, incentive forums are to be introduced. These comprise staff and a representative proportion of prisoners, to include white, BAME, Gypsy, Traveller and Romany, and all other prisoner groups with protected characteristics that are present in the prison.

The Forum is intended to allow discussion of the incentives scheme amongst prison officers and prisoners, giving feedback on the schemes operative in the particular prison. This allows Governors and Directors to update their incentive schemes based on what is and isn’t working in the prison population, encouraging prisoners to positively engage in the system by having a voice in the process.

How we can assist?

If you need specialist advice, then get in touch with Bethan Williams on 01758 455 500 and let us help. We can advise on all aspects of your case.


Women in Prison

03.07.19 New guidelines covering arson and criminal damage

Today the Sentencing Council published new guidelines covering arson and criminal damage of all kinds, as well as threats to destroy property. There were existing guidelines, but they were thought to be very limited and only covered the Magistrates Court, there were no guidelines for the Crown Court, which deals with the more serious offences.

Sentencing guidelines are designed to ensure that the court passes an appropriate sentence and does so consistently across all of these extremely varied cases.

A judge must follow sentencing guidelines unless it is not in the interests of justice to do so.

The new guidelines will replace those that existed in the Magistrates Court and extend to the Crown Court, covering all offenders aged over eighteen.

The Sentencing Council has said that the guidelines will make sure courts consider:

• The full impact of arson or criminal damage such as vandalism on national heritage assets including listed buildings, historic objects or unique parts of national heritage and history.
• The economic or social impact of damaging public amenities and services such as a fire at a school or community centre, or criminal damage at a train station, which can adversely affect local communities or cause economic hardship to neighbouring houses or businesses.
• The effect on communities when an area’s emergency services or resources are diverted to deal with an incident of criminal activity.

The guidelines provide starting points, and category ranges for offences of arson, arson and criminal damage (intending that, or being reckless as to whether life is endangered), criminal damage over £5,000, criminal damage under £5,000, racially or religiously aggravated criminal damage of both values, and threats to destroy or damage property.

The guidelines require a sentencer to determine the ‘culpability’, taking into account things like planning, intended amount of damage, and motive, and ‘harm’, taking into account physical or psychological harm caused, the value of the damage actually done, and any subsequent loss the damage causes.

Racially and religiously aggravated offences are given an ‘uplift’ for the level of aggravation, making for more severe punishment and possibly lifting an offence above the custody threshold.

To take an example, criminal damage under £5,000 with elements of significant planning and causing a high amount of damage and distress would lead to a starting point of a high-level community order with a range from a medium-level community order to three months custody. If that were a racially aggravated offence, where the racial motive was a significant part of the offence, that would likely increase the starting point to a custodial sentence.

Commenting on the new guidelines, John Bache JP, National Chair of the Magistrates Association, said:

‘We are very pleased that the new guidelines for Arson and Criminal Damage have been published, and will be available for magistrates from 1st October. These new guidelines will be very helpful to magistrates dealing with these important cases and clearly set out the relevant factors in determining harm, beyond a focus on physical damage. It is, however, right that if an offender has mental health conditions or learning disabilities then courts must obtain assessments to fully understand whether this impacts on their culpability, and this guideline will help to ensure that this happens.’

How we can assist?

If you need specialist advice, then get in touch with Michael Strain on 01758 455 500 and let us help. We can advise on all aspects of your case.


Women in Prison

24.06.19 Why hasn’t Michael Gove been arrested?

A question on many people’s lips since the former Justice Secretary admitted to using cocaine several times earlier in his career.

So, could he face the legal consequences of this?

Cocaine is a Class A drug, the most serious category. Drug offences are governed by the Misuse of Drugs Act 1971 and whilst buying a controlled drug in this scenario is not an offence, possession is. It carries up to seven years in prison.

Is Michael Gove’s confession enough?

Possibly. The Prosecution will usually have to prove that a substance is in fact a controlled drug, and the most convenient way to do that is through a forensic report.

In this case, though, the drugs are long gone and can’t be analysed. The prosecution would have to rely on his public confession.

A confession was relied on in R v Chatwood [1980] 1 All ER 467 where the Court of Appeal said that a confession could amount to evidence that, on the face of it, the defendant had been in possession where he was expressing an informed opinion.

Whether Michael Gove’s opinion could be described as ‘informed’ will be the key question and would likely depend on how often he used the drug.

His confession could be used as evidence, however, if he were to be charged with attempted possession under the Criminal Attempts Act 1981.

The prosecution could accept that Gove did not actually possess cocaine but allege instead that he had tried to possess it. The maximum sentence is the same.

Has it been too long to charge Michael Gove with a drugs offence?

No. There is no general ‘Statute of Limitations’ in England and Wales. Offences only triable in the Magistrates’ Court usually have a limit of six months, but possession of a drug is not one of those.

He could, theoretically, still be charged.

Will Michael Gove be prosecuted?

The Crown Prosecution Service would make a decision as to whether a prosecution should proceed.
To do this, they apply the Full Code Test set out in the Code for Crown Prosecutors. This is the same for every offence.

The Full Code Test has two stages which need to be met. These are the evidential stage, and the public interest stage.

In short, there needs to be enough evidence for a realistic chance of conviction, and it must be in the public interest to bring a case. If a case fails either test, it will not be prosecuted.

The confession is potentially enough evidence for a case to be brought. A Crown Prosecutor would have to be satisfied that it, and any other evidence, is admissible and leads to a realistic prospect of conviction.

Any evidence from Owen Bennett, the City AM political journalist who outed Gove’s cocaine use in his unauthorised biography of the Environment Secretary, or Gove’s political advisors to whom he confessed would need to be carefully considered, and a prosecutor may have grave doubts as to its admissibility.

In the event there was enough evidence, the case would also have to pass the public interest stage. A case will usually pass this stage unless there are factors against the prosecution that outweigh those in favour.

This stage takes into account a lot of factors, including the seriousness of the offence, the circumstances, any harm caused, impact on any victims, and whether a prosecution is proportionate.

The likely penalty would be a small fine or community punishment at most.

Therefore, Gove could be prosecuted but it is unlikely in all of the circumstances. Reputationally and politically, this admission could exact a great cost.

How we can assist?

If you need specialist advice, then get in touch with Michael Strain on 01758 455 500 and let us help. We can advise on all aspects of your case.


Women in Prison

21.06.19 Women in Prison

Prison is supposed to be hard. It is, after all, a punishment. But it’s also designed to help people address their behaviour and stop them re-offending. When imprisonment leads to more offending, it isn’t working.

The specific problems faced by women have been highlighted recently by the Farmer Review for Women. Lord Farmer hopes to improve women’s experience within the criminal justice system with the aim of reducing re-offending.

But it isn’t just about prisoners. A previous study by Lord Farmer on male prisoners found 63% of male prisoners’ sons went on to offend themselves and adult children of imprisoned mothers are even more likely to be convicted.

The problems revolve mainly around the breakdown of family relationships, particularly as women are often primary carers, that flow from a spell in custody, whether on remand or in prison.

The Report found that women who receive family visits are 39% less likely to reoffend, and so the importance of alleviating these problems is obvious.

What are the problems?

Any custodial stay, whether the first night in the cells or five-year prison sentence, can have a devastating effect on several areas of a person’s life.

Relationships with all family members, particularly with children and partners, suffer badly when one member of that unit is taken away for an extended period.

This is made worse by the fact that women are held on average 63 miles from home, increasing the difficulty of prison visits.

Anxiety of mothers and primary carers in custody is increased due to separation from the children, especially where the mother is the sole carer. Children are the first priority in this situation, and the Report found that little progress can be made with the prisoner until this anxiety is dealt with.

Domestic violence also is recognised for its huge impact on women’s lives, tying in to relationships and possible causes of offending.

What can be done to help?

The Report recognises that the early intervention in a wide range of circumstances including mental health, relationship breakdown, substance misuse, education and debt can all help to prevent offending.

It makes a number of recommendations to strengthen female offender’s family and other relationships to prevent re-offending and reduce intergenerational crime.

Recommendations

Earlier intervention to address the vulnerabilities of some women which can lead to them coming into contact with the criminal justice system and diverting them from it. If women had ready access to services and good peer support networks, it could prevent offending and the repetition of the cycle by children.

A specific recommendation is to create a personal circumstances file for a woman so that information can be shared through trusted organisations such as the police and local authority, NHS and Victim Support.

A renewed focus on alternative accommodation is required, bail hostels are currently geared towards men and prohibit children living there or visiting them. These restrictions need to be reviewed by the government and women in hostels need to be referred to services to assist with parenting or relationship issues where appropriate.

Pre-sentence reports should be mandatory for all women (and male primary carers) if a custodial sentence is a possibility. The report would clarify the repercussions of a custodial sentence on dependants and put forward detail of mitigating factors such as domestic abuse.

Women sentenced to custody or remanded must be given the opportunity to make telephone contact with dependents and organise childcare before being put onto transport. Consideration should be given to primary care or other relationships before a woman is remanded as even a short remand can have devastating effect on families, tenancies and the ability to provide for family.

The development of custodial centres should be a long-term strategy, used for women whose crime is serious enough to merit a custodial sentence but who are low enough risk to retain care of their children.

Where a custodial term is inevitable there are many recommendations to enhance rather than break down family ties. Such recommendations as improvements to the Assisted Prison Visits scheme and space for private family visits.

Some of the most frequent issues raised by women prisoners were access to release on temporary licence (ROTL) and child resettlement licence (CRL).To address this ROTL could be used far more frequently and creatively to help women fulfil caring responsibilities and aid resettlement, CRL could be widened to include other family circumstances and not just rest on sole carer status.

To aid communication during sentences the operation of prisoner email schemes needs to be consistent and all female prisons to develop an email reply system so that children do not think they are being ignored if no reply is received. Virtual visits and in cell telephony should be utilised to supplement face to face visits.

Conclusion

The cost of the recommendations is balanced throughout, for example, by the savings from keeping women out of the prison system and the cost saved by children not being cared for by social services. There are certainly a number of interesting recommendations, but it remains to be seen whether they are put into place.

In the meantime, our advocates will ensure that a comprehensive picture is presented to any sentencing court.

How we can assist?

If you need specialist advice, then get in touch with Michael Strain on 01758 455 500 or office@strainandco.co.uk and let us help. We can advise on all aspects of your case.


Prosecuting Sexual Offences - Time for a rethink?

17.06.19 Prosecuting Sexual Offences - Time for a rethink?

Justice, the renowned human rights organisation, has published a significant report that examines the prosecution of sexual offences, and in some areas calls for a radical overhaul.

Among the authors of the report is Judge Peter Rook QC, a senior Judge at the Central Criminal Court ('Old Bailey') and considered an expert authority on this area of law.

Two of the areas examined were preventing and reducing offending. Turning its attention to those who view indecent images of children ('IIOC'), the report recommended as follows:

"Police-led diversion schemes have recently been developed. These seek to address the factors that may lead to offending behaviour without the need for prosecution. We have been inspired by the success of these programmes to develop our own proposal for a Conditional Diversion Scheme, for individuals who have viewed IIOC. We consider that this scheme will provide the correct intervention to these individuals as quickly as possible, helping to both save prosecution and court resources and ensure reoffending rates remain low. Our proposed scheme has been developed together with experts in the field and we consider it to be a sensible response to the volume of reports that the police receive each month."

The authors also had much to say concerning rehabilitative programmes and the effect of protective/preventative orders:

"When it comes to sentencing, this working party believes that lessons should be learned from the skills-based approach to rehabilitation, which has shown this to be an effective way to reduce reoffending rates. There should be a shift in focus to rehabilitation and more flexibility should be given to sentencers to allow them to make suitable orders that allow the individual to rehabilitate effectively. This is especially the case for Sexual Harm Prevention Orders, where we have heard that overly restrictive orders can isolate an individual from society once released from prison, hindering them from getting their lives back on track and risking further offending."

Our work brings us into contact with a great many people who commit offences at all level of seriousness, and of course, many that have committed no crime at all. We know that criminal investigation and proceedings can have a devastating effect on those accused and their wider families.

In all cases, we work sensitively and diligently to prepare a robust defence case when that is required and to work hard with others to ensure outcomes that work for our clients and the wider community when it comes to sentencing.

We welcome this report and its mature examination of such complex societal issues.

How we can assist

If you need specialist advice, then get in touch with Carys Parry on 01758 455 500 and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.


13.06.19 Sally Challen - An Issue of Coercive Control

Private Prosecutions - 'Doing a Boris'

In February 2019 the Court of Appeal quashed Sally Challen's conviction for the murder of her husband and ordered a retrial.

Last week the prosecution accepted a plea to the lesser offence of manslaughter and Challen received a sentence that meant she would serve no further time in custody.

Why was the appeal allowed?

Challen advanced two grounds of appeal:

1. The fresh evidence on coercive control and the fresh psychiatrist evidence support the proposition that at the time of killing the appellant was suffering from an abnormality of mind. Had expert evidence on coercive control been available at the time of the trial, the jury may have reached a different conclusion on diminished responsibility.

2. The fresh evidence also goes to the issue of provocation in that it helps establish the appellant was provoked to kill the deceased because of his controlling and coercive behaviour.

The foundation for both lines of the challenge was her husband's controlling and coercive conduct, conduct which is now a criminal offence in itself. Section 76 of the Serious Crime Act 2015 criminalises a pattern of abusive behaviour, the individual elements of which are not necessarily unlawful in themselves. This is designed to better protect victims of domestic abuse.

Counsel for Challen argued that the courts have recognised the concept of battered person syndrome, but that syndrome focuses on the psychological impact of repeated physical abuse, whereas coercive control focuses on systemic coercion, degradation and control.

The lack of knowledge about the theory of coercive control at the time of the appellant's trial, meant that the partial defence of diminished responsibility was not put as fully as it could have been and the defence of provocation was not advanced at all by counsel then representing the appellant.

The appellant's actions were not, therefore, put into their proper context.

Did the court agree?

The court held:

"We were not persuaded that had it stood alone the general theory of coercive control on the facts as presented to us would have afforded the appellant a ground of appeal. However, it did not stand alone. We have focused on [the Doctor's] post-conviction diagnosis that the appellant suffers from borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, and suffered from those disorders at the time of the killing. If that is correct, it is in that context that the theory of coercive control may be relevant.

We express no view on whether the appellant was the victim of coercive control and no view, if she was a victim, on the extent to which it impacted upon her ability to exercise self-control or her responsibility for her actions. However, because expert evidence was not available to defence counsel at trial, neither the possibility that she was suffering from these two disorders, nor the issue of the impact upon her of the abusive relationship were explored at trial in any detail. The issue of provocation was not advanced at all."

Accordingly, a retrial was ordered.

In the end the prosecution accepted the plea to a lesser charge of manslaughter in light of overwhelming evidence as to the husband's behaviour and the effect on Challen’s state of mind at the time of the killing.

What does this case tell us?

From a legal perspective it tells us two things:

1. Coercive control is now a relevant factor to be taken into account when considering what defences might be available; and

2. That as medical and other disciplines evolve, we have to take stock of older cases to see whether those advances might support a fresh appeal.

How we can assist?

If you need specialist advice, then get in touch with Michael Strain on 01758 455 500 and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.


03.06.19 Private Prosecutions - 'Doing a Boris'

Private Prosecutions - 'Doing a Boris'

A District Judge sitting at Westminster Magistrates' Court last week authorised that a summons be issued against the prominent conservative member of parliament, Boris Johnson.

The allegations relate to alleged conduct during the Brexit referendum campaign and in particular the £350m per week for the NHS slogan that adorned the side of campaign buses.

Unless other steps are taken to the stop this prosecution, Johnson will have to appear in court to answer these charges and face trial at the crown court.

So what?

The unusual aspect of this case is that this is a private prosecution crowdfunded by individuals who support the prosecution.

Is that unusual?

In England and Wales, the vast majority of prosecutions are undertaken by the Crown Prosecution Service. Also, there are also a large number of other public bodies that regularly prosecute cases, generally of a specialist nature, before the courts, such as the Environment Agency, Serious Fraud Office, Local authorities, Civil Aviation Authority etc.

There are also very few well-known organisations that regularly privately prosecute cases, most notably the RSPCA in respect to allegations of animal cruelty.

But private individuals prosecuting cases are relatively rare.

Are private prosecutions always allowed?

The Supreme Court has reiterated quite recently that private citizens have a constitutional right to prosecute alleged crimes before the courts.

Some companies and individuals’ resort to private prosecution when they feel that the State has failed to act.

There are many safeguards to prevent vexatious prosecutions, such as:

• Scrutiny before a summons is issued
• Abuse of Process remedies
• The ability of the Crown Prosecution Service to take over a private prosecution
• A new proposed code for private prosecutors drafted by specialist firms who conduct this type of work
• Risk of adverse costs orders if the prosecution is unwarranted

Despite these safeguards, there are still some concerns, and we are particularly alert when a private prosecutor is involved to ensure defendant rights, particularly concerning disclosure and fair prosecution practice, are protected. We will not hesitate to seek full costs recovery on behalf of a client if the prosecution ought not to have been brought in the first place.

How we can assist

If you need specialist advice, then get in touch with Michael Strain on 01758 455 500 and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.


03.06.19 Sentencing - Breaking the CodeSentencing - Breaking the Code

Few people would disagree with the suggestion that sentencing law in England and Wales is a complete mess. The provisions that govern how a defendant is to be sentenced are both complex and disparate and to be found across a significant number of statutes.

Why does this matter?

Research has shown that thousands of sentencing errors are made each year, with many going completely undetected. Sometimes the mistakes make little difference in practice, but often the failure leads to unlawful sentences being imposed.

The complexity of the statutory provisions is only one consideration, and we also must take note of a large body of case law. Again, we see many errors, most notably concerning protective orders where conditions imposed are often draconian and unnecessary.

Sentencing errors can lead to a failure to protect victims, unlawful or inappropriate sentences for defendants, and very costly appeal proceedings that are often necessary to correct the mistakes. Ironically the Court of Appeal often makes mistakes itself.

So, what is being proposed?

The Law Commission has proposed a 'Sentencing Code'; this will be a single Act of Parliament that will place all sentencing provisions in one place.

To achieve this, a two-stage process will take place:

1. Minor amendments to existing statutes will be made to 'tidy up' the statute book.
2. Immediately afterwards the provisions will be consolidated into one Act of Parliament ('the sweep').

This clean sweep of law will then lead to a single consolidated statutory provision that can be further amended in the future.

It is important to note that this procedure is a consolidating procedure, so apart from minor changes to legislation, there is no material change to existing law. There will be no increases to existing sentences.

Will this make a difference?

Given the effect of this is merely to move sentencing law into one single statute, it is a reasonable question to ask whether this will make a difference.

The Law Commission carried out extensive testing of the proposals, and it was demonstrated that having a single reference point for sentencing leads to fewer errors. Errors will continue to be made, for all manner of reasons, but we should see a massive reduction.

When will these changes happen?

The first piece of legislation was laid in the House of Lords last week, and the provisions could be law in a matter of months. Much will depend on the legislative timetable and the uncertainty of the political situation at the present time.

When the relevant legislation is enacted, there will need to be a period of training for lawyers and judges before the new statute takes effect, so we are looking at mid-2020 in all likelihood.

What happens until then?

Until that time, we will continue to be alert on your behalf. Our lawyers take great care to ensure lawful and proportionate sentences are passed and will not hesitate to take corrective action where that is required. We prefer to work hard to avoid mistakes in the first place, and all our advocates are highly trained in the complexities of sentencing law. Our ethos is a 'get it right first-time' one.

How we can assist?

If you need specialist advice, then get in touch with Bethan Williams on 01758 455 500 and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.


03.06.19 Release on Temporary LicenceRelease on Temporary Licence

The government has conducted a review of the process for prisoners to be released on temporary licence (ROTL); the drive behind the changes being the rehabilitation of offenders.

Research has shown that working in the community prior to release significantly reduces the likelihood of re-offending, and ex-offenders in employment are up to nine percentage points less likely to commit further crime.

Re-offending currently costs the country £15 billion per year.

Previous changes focussed on support for ex-offenders when they leave prison with changes to the probation service and a move away from short, ineffective, prison sentences and to allow more effective treatment of issues such as addiction and mental health problems.

Now a number of changes have been made to the previous policy on ROTL, for adults, to assist in preparation for resettlement in the community once released.

The changes include:

• The threshold for Restricted ROTL is changed so that it is focussed on the most serious offenders.
• The current restriction on ROTL in the first three months after transfer to open conditions is removed, subject to a risk assessment.
• Those serving indeterminate sentences are eligible to be considered for unaccompanied day release (RDR) from the point of entry to an open prison or reaching open status in a women’s prison.
• In order to streamline the process agencies are consulted and boards only sit where necessary, with a focus on the right information and reducing paperwork.
• Greater use of workplace ROTL is encouraged; paid work will be allowed as soon as a prisoner is eligible for day release and the requirement for a prisoner on ROTL to spend at least one 24-hour period per week in prison is removed.
• Primary and sole carers will be allowed to apply for Childcare Resettlement Licence.
• Prisoners with a prior history of absconding will be allowed to be risk assessed for open conditions and ROTL if the history is more than two years ago and happened only once in the current sentence.
• Directors of contracted prisons will be allowed to take ROTL decisions whilst the Controller will continue to monitor the Director’s compliance in this area.

Any temporary release will always be balanced with the need for maintaining public safety and the public’s confidence in the judicial system, for example, the risk assessment will consider the impact of any release on identified victims and their whereabouts. More serious offenders will be subject to Restricted ROTL which includes a number of elements over and above Standard ROTL such as enhanced monitoring.

The use of ROTL was restricted in 2013 following a murder committed by a prisoner on day release but the new changes mark a shift in attitude. Allowing prisoners to spend time in the community is a vital part of reintegration and 99% of all temporary releases are completed successfully.

How we can assist?

If you need specialist advice, then get in touch with Carys Parry on 01758 455 500 and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.


14.05.19 Who Guards the Guards?Focus On Forensics

This perennial question was back in the news following a ministry of justice announcement that further steps would be taken to root out dishonest prison officers and others working in custodial institutions.

A new counter-corruption unit will be tasked with 'proactively [purusing] those suspected of corrupt activity in prison and probation services across England and Wales.'

The unit comprises 29 specialist staff split into a national team and 5 regional teams. Within these teams are expert intelligence analysts who will examine threats to the organisation.

Corruption can range from a member of staff having a relationship with a prisoner to bringing in drugs and contraband for individual prisoners or organised crime groups. The unit complements prison security teams that can already search staff, including with metal detectors and baggage scanners.

The new Counter Corruption Unit has 4 aims to combat the threat:

• protect against corruption by building an open and resilient organisation;
• prevent people from engaging in corruption, strengthening professional integrity;
• pursue and punish those involved in corruption;
• prepare prisons to minimise the impact of corruption where it does occur.

How widespread is the problem?

The numbers of staff found taking contraband into prisons in England and Wales has risen by 57% in the past six years, according to ministry of justice figures obtained through a freedom of information request, with 341 either dismissed, excluded, convicted or cautioned by police. In 2017, there were 71 cases of staff smuggling compared with 45 in 2012.

Ben Crewe, deputy director of Cambridge University's Prisons Research Centre, said staff cuts and a more significant proportion of inexperienced officers meant that "those in post are more vulnerable to corruption".

This is terrible news for prisoners looking to leave prison with a clean slate - if the temptation is offered from within the prison estate the chances of breaking free from a cycle of criminality is severely diminished.

The new heightened security measures will also act as a deterrent to prisoners who break the rules while serving a sentence as the chances of capture may significantly increase.

The alarming scale of prison officer corruption also leads many to question the value that can be placed on prison officer testimony during court cases and prison adjudications. The actions of a few can impact on the entire staff.

How we can assist?

If you need specialist advice, then get in touch with Bethan Williams on 01758 455 500 let us help, we deal with all manner criminal offences on a daily basis and have the expertise to get you the best result possible.


09.05.19 Speeding - How Fast is Too Fast?Focus On Forensics

The idea of speed limits causes immense confusion, with many people believing that the speed limit is at least the minimum speed you should ordinarily drive at.

Most of us have experienced the rage of a motorist behind us if we adhere to the limit, and a step below it to any degree can cause outrage.

In reality, however, the safe speed is always linked to the conditions, so we need to factor in lighting, road conditions, traffic flow etc., but still having an eye on the overall speed limit.

But, just how strictly are those limits enforced?

Research published recently by Auto Express magazine showed that most police forces adopt a 10% +2 policy, so if the speed limit is 40 miles per hour (mph), there will be no fixed penalty or prosecution unless the speed exceeds 46 mph. Interestingly some police forces, including Greater Manchester and the West-Midlands among others, refused to confirm the margin. Lancashire Police and the Metropolitan Police stated that they adopt 10% +3, Essex said they operate no threshold, and several other forces refused to say anything about the issue.

Even where a margin of error is allowed for, this would not preclude a prosecution if the police wished to pursue one, so unless you are going to drive around with a current and comprehensive list of speed policies in your head, the safe course is to stick to the limit.

As well as exploring police policies to speed, the research also disclosed that car speedometers typically display a speed which is 1 or 2 mph above the actual speed of the vehicle, so this again provides some welcome tolerance for those times when you might not be fully observing the applicable limit.

In criminal law terms, speeding is often seen at the bottom of the list when compared to other crimes. Despite the relative low penalties, those points can soon hit the magic 12, and the risk of disqualification can become very real for many people (and some new drivers may forfeit their licence after gaining only 6 points). Speeding far in excess of the speed limit can result in instant disqualification or being charged with a more serious offence such as dangerous driving.

When looking at the more serious offences, in particular causing death by careless or dangerous driving, we see that excess speed is often a feature highlighted by the prosecution. What starts as nothing other than a rush to get home in time for the soccer can soon become an unintended tragedy for all concerned.

How we can assist?

If you need specialist advice, then get in touch with Carys Parry on 01758 455 500 and let us help, we deal with all manner of road traffic offences on a daily basis and have the expertise to get you the best result possible.


03.05.19 Listen, do you want to know a secret?Focus On Forensics

Gavin Williamson MP has been sacked from the Cabinet for leaking confidential information from the National Security Council regarding Huawei. Theresa May considers that the matter is closed and won't refer him to the police. However, they can investigate anyway, but would need the cooperation of the Cabinet Office. There are some sensitivities when it comes to investigating the workings of government at Cabinet level.

What crime might he have committed?

The Official Secrets Act 1989 covers information like this and applies to the former Defence Secretary because he was a Crown Servant, in other words, a Government Minister.

Doesn’t he have to sign the Act?

No. There is no requirement for a person to sign the Official Secrets Act, although it is often done to reinforce to members of MI5, MI6 and GCHQ that it applies to them. Certain persons do have to be notified that the Act applies in order to trigger liability for certain offences.

What does the Act say?

There are various provisions within the Act, two of which may be relevant. They relate to Security and Intelligence, and International Relations.

Under each section, a Crown Servant commits an offence if he makes a “damaging disclosure” of any information they have access to because of their job.

Members of MI5, MI6, GCHQ, and people who are notified that this part applies to them, commit an offence by making any disclosure. It is this reference to ‘notification’ that leads to people being asked to ‘sign the Act’, but in reality, this is only in relation to people who might not know the importance of the information they might come across.

It is possible Gavin Williamson had been notified this applies to him, in which case his leak would seem to be an offence, but we don’t yet know for certain. The Cabinet Office manual does however contain specific reference to the Act, so notification does seem likely to have been in operation.

If he hadn’t been notified, he was subject to that part of the Act, the leak would have to be damaging to one of the areas above. This would be by damaging the work of the security and intelligence services or endangers the interests of the UK abroad.

Was the leak damaging?

Maybe. It may damage the capability of the security and intelligence services to conduct investigations. Sources may not be willing to cooperate if they feel their information will appear in the Daily Telegraph the next day.

It could also mean that foreign intelligence agencies, such as Five Eyes, are more hesitant to share information with us.

Since the leak related to Huawei and their links to the Chinese Government, it may be that it has damaged our interests in China.

Both could count as damage under the Act.

But if Huawei are Chinese spies, we need to know!

That may be, but there is no “whistle-blower” defence to the Official Secrets Act. Just because it is in the public interest to leak information does not mean it isn’t still a crime.

Has Gavin Williamson breached the Official Secrets Act 1989?

It is possible. There are opposing views at the moment, with Julian Lewis, Chair of the Defence Committee, saying that no secret information was leaked.

Other reports say the opposite, and it has been reported that the NSA has already voiced their concerns.

Whether there is evidence to satisfy a jury of criminality remains to be seen, and the situation may well be complicated by the role of security services and methods employed in order to gather that evidence.

Why not ask the journalist?

The journalist will not voluntarily reveal any information given and given journalistic protections enshrined in law it is unlikely that he could be compelled to cooperate.

Are the offences serious?

If convicted, Williamson could go to prison for up to two years. In the end, it will be up to the police and Crown Prosecution Service, with the consent of the Attorney-General, to investigate and prosecute.

Are there defences to the Official Secrets Act?

Yes. Crown Servants can show the leak wasn’t damaging. It’s also a defence to show that the disclosure was authorised, or that you didn’t believe the disclosure would be damaging.

How we can assist?

If you need specialist advice, then get in touch with Michael Strain on 01758 455 500 and let us help. Whilst investigations under the Official Secrets Act are relatively rare, the underlying evidential considerations are things that our experts deal with on a daily basis.


01.05.19 Focus On ForensicsFocus On Forensics

Forensic evidence has dominated some of the news agenda this week, with outrage over the interrogation of complainant's phones in sexual offence and other cases.

In reality of course, if a police officer is to investigate a criminal offence fairly, the interrogation of phones, computers and other devices may well be necessary, despite the potential for intrusion into a person's privacy.

We see a great many cases where phones are seized following arrest, only to be returned a great many months later, causing great inconvenience.

It is our job as criminal defence lawyers to ensure that the police do their job, follow all proper lines of enquiry, and ensure that all evidence that ought to be disclosed to us is revealed.

If you look at the significant miscarriage of justice cases over the last 50 years, the most critical failing appears to be a lack of proper disclosure of evidence. In some cases, the evidence is neglected, in others actually destroyed or deliberately suppressed.

The second big story this week was a report from the Lords Science and Technology Committee examining the work of forensic science providers in the criminal justice system, here are some of the findings:

“The instability of the forensic science market is a serious risk to the criminal justice system.”

“A free society is dependent on the rule of law which in turn relies on equality of access to justice. The evidence we received points to failings in the use of forensic science in the criminal justice system and these can be attributed to an absence of high-level leadership, a lack of funding and an insufficient level of research and development. Throughout this inquiry, we heard about the decline in forensic science in England and Wales, especially since the abolition of the Forensic Science Service.”

“Cuts to legal aid have affected the ability of defendants to access forensic expertise. We recommend that the Legal Aid Agency liaise with the market-regulation arm within the expanded role of the Forensic Science Regulator to set new pricing schemes, properly funded by the Ministry of Justice, for forensic testing and expert advice for defendants.”

Regrettably, none of these findings causes us the least bit of surprise, and we are acutely aware of the deficiencies in the current system. As defence lawyers, we work proactively to ensure that all work is carried out swiftly and to the required standard. Only by being fully aware of the weaknesses in the system can we ensure that our clients' cases are appropriately presented.

How we can assist?

If you need specialist advice, then get in touch with Michael Strain on 01758455 500 and let us help, we have the necessary skills and experience to assist you in respect to any criminal investigation or prosecution.


30.04.19 Undercover Policing - Beyond the Line of DutyUndercover Policing - Beyond the Line of Duty

The television drama 'Line of Duty' continues to captivate audiences keen to discover the identity of 'H' and the top copper involved in organised crime gangs.

Central to the plot of this series has been undercover cop John Corbett, who met with an unexpected and grisly end in episode 4.

Having been sent in to expose the workings of organised crime gangs, he appeared to go bandit and was involved in armed robbery and murder, despite appearing otherwise legitimate when trying to convince AC12 officer Steve Arnott that he was near to uncovering the police officer at the head of the plot.

So, how near to real life is this scenario?

The role of undercover police officers is well documented, but surprisingly there is little statutory control over what they can and cannot do.

They cannot, of course, kill people, otherwise than with a lawful excuse, such as self-defence, but by necessity, they have to get involved in some level of criminality otherwise they would be quickly exposed.

The difficulty lies when the boundaries become blurred; can we always tell when an officer is a bystander or lowly participant, and when, as in the case of John Corbett, they appear to be the instigator of a serious crime?

At the moment there is an enquiry underway concerning undercover policing, but its findings are some years away yet. In the meantime defence lawyers need to carefully peel away the layers of secrecy, navigating public interest immunity obstacles in a fight to uncover the real story of their client's involvement in alleged criminality.

This work can be slow and painstaking, but experienced lawyers know the law inside out and are well placed to ensure that your corner is appropriately defended. Only by shining a light on this often secret police world can a jury fully explore all of the facts and arrive at a just verdict.

As serious crime becomes every more organised and sophisticated, and traditional surveillance techniques are frustrated by modern technology and encryption, it is likely that the police will have to rely even more on old school techniques to gather evidence.

But we also know that human behaviour is complex and undercover police do not always keep to the rules, on occasion being guilty themselves of crime and encouraging others to commit crimes that they otherwise may not have (a legal concept called entrapment).

How we can assist?

If you need specialist advice, then get in touch with Carys Parry on 01758 455 500 and let us help, we have the necessary skills and experience to assist you in respect to any criminal investigation or prosecution.


15.04.19 Government Tightens Terrorism LawsAppeals from Beyond the Grave

The Manchester Arena bombing, the London Bridge attack, Shamima Begum. These are some examples of terrorism headlines in the past few years.

The Counter-Terrorism and Border Security Act 2019 is the Government’s latest answer to curbing and punishing terrorist activity. The Act creates new terrorism offences, changes some old ones, and increases the maximum sentence for many existing ones. The new provisions came in to force on 12 April 2019 and apply to offences committed on or after that date.

Expression of Support for Proscribed Organisations

This new offence covers a situation where a person expresses an opinion or belief that supports a proscribed organisation and is reckless as to whether the person listening will be encouraged to support it.

This is explained as plugging a gap expressed by the Court of Appeal in Anjem Choudary’s case; that it was not unlawful to support a proscribed organisation, or to express those views.

It was an offence to actually and intentionally invite support for them.

Doubtless there will be free speech challenges to this new provision under Article 10 of the European Convention on Human Rights. The Court in Choudary ruled that the existing offence of inviting support did not breach Article 10 because it did not restrict the expression of views.

Publication of Images and Seizure of Articles

This creates an offence of publishing images, including videos, of prohibited clothing/articles (usually flags or banners) in circumstance where it arouses a reasonable suspicion that the person is a member of a prohibited group.

It covers situations where the image itself may be very good evidence of the person wearing or displaying an article, but no offence is committed because they are not in a public place in the photograph.

The photograph itself, of course, can reach a wide audience (for example via social media) similar to being in a public place, but this was not an offence up to now.

Obtaining or Viewing Material over the Internet

This makes it an offence to simply view, on top of actually download/record, information likely to be useful to a terrorist attack. It also clarifies that the existing provisions do indeed include downloading information.

There is a defence if a person can show a reasonable excuse, for example a journalist researching a story.

This offence may also face legal challenge based on free speech and freedom of expression.

Entering or Remaining in a Designated Area

This section is expressly to deal with “foreign fighters” that leave the UK for places such as Syria in order to fight for proscribed organisations such as IS.

The Secretary of State can make regulations designating areas outside the UK, where he is satisfied it is necessary in order to protect the public from threats of terrorism.

It would then become as offence for UK nationals or residents to go to, or remain in, any of those designated places subject to a one-month grace period and exceptions for people such as diplomats or armed forces, and other reasons such international aid work or to visit a terminally ill relative.

It is also a defence to enter involuntarily.

The Secretary of State must keep any designation under review, and in any event a designation lapses after three years.

Encouraging Terrorism and Dissemination of Terrorist Publications

This section amends the current sections 1 and 2 of the Terrorism Act 2006.

It changes the requirement that statements or publications made are likely to be understood by those at whom they are directed to a test that they are likely to be understood by the reasonable person.

This means that the offence will now cover situations where statements or publications are made towards children or those who do not have the capacity to understand the remarks made.

Sentences for Terrorism Offences

The maximum sentence for some terrorism offences are increased. They are:

1. Failure to disclose information about terrorism: doubled to ten years.

2. Collection of information likely to be useful to a terrorist: increased from ten to 15 years.

3. Eliciting, collecting or publishing information about the armed forces likely to be useful to a terrorist: increased from ten to 15 years.

4. Encouragement of terrorism: more than doubled from seven to 15 years.

5. Dissemination of terrorist publications: more than doubled from seven to 15 years.

Existing sentencing guidance will need to be reviewed in light of these changes.

How we can assist?

If you need specialist advice, then get in touch with Michael Strain on 01758 455 500 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.


08.04.19 'Hung Jury' - Not as Bad as it SoundsAppeals from Beyond the Grave

Last week the Hillsborough trial involving ex-police officer David Duckenfield ended without reaching a conclusion; a number of papers reported that there was a 'hung jury' - so, what does that mean?

In an ideal world, a jury will reach a clear conclusion by either convicting or acquitting the defendant.

In a case with 12 jurors at least 10 must agree on the verdict, so if the numbers fall short, for example, 8 wanting to acquit, 4 wanting to convict, that is not an acceptable verdict.

If the jury indicates that they will not be able to reach a verdict in accordance with the law, the jury will need to be discharged.

In legal terms, this is often referred to as a 'hung jury'.

What happens next?

The prosecution can apply to have the defendant tried again, and this is the outcome in most cases.

The decision is one for the trial Judge who will consider whether or not it is in the interests of justice for a retrial to take place.

Typically, the court considers questions which include (but are not limited to) whether the alleged offence is sufficiently serious to justify a retrial; whether, if re-convicted, the appellant would be likely to serve a significant period or further period in custody; the appellant’s age and health; and the wishes of the victim of the alleged offence.

If prosecutorial misconduct is alleged then other factors will come into play, analogous with whether it is an abuse of process to allow a retrial.

In most cases, the defence will not be able to properly resist the application, but we would always carefully consider all relevant factors and object if able to.

What happens if a new jury still cannot reach a verdict?

The usual practice in this scenario is for the prosecution to offer no evidence, although there are rare circumstances where a further retrial could take place.

How we can assist?

We are specialists in all aspects of criminal law and procedure, if we can assist you with any criminal investigation or prosecution then contact Carys Parry on 01758 455 500 for prompt assistance.

 


02.04.19 Appeals from Beyond the GraveAppeals from Beyond the Grave

The Court of Appeal has handed down judgment in the case of R v Max Clifford, the disgraced celebrity PR guru who was convicted in 2014 of a number of sexual offences and sentenced to 8 years imprisonment.

Clifford died in 2017, so why did the appeal proceed?

Section 44A of The Criminal Appeal Act 1968 provides that:

'...any relevant appeal which might have been begun by him had he remained alive may be begun by a person approved by the Court of Appeal ...'

Approval for the purposes of this section may only be given to:

(a) the widow or widower or surviving civil partner of the dead person;

(b) a person who is the personal representative (within the meaning of section 55(1)(xi) of the Administration of Estates Act 1925) of the dead person; or

(c) any other person appearing to the Court of Appeal to have, by reason of a family or similar relationship with the dead person, a substantial financial or other interest in the determination of a relevant appeal relating to him.

In Clifford's case, the Court of Appeal consented to his daughter pursuing an appeal that was commenced before his death.

Was there any point?

An appeal, notwithstanding death, can potentially assist with two main objectives:

(a) Restoration of a person's good character, and

(b) to assist in resisting civil claims.

There have been other appeals lodged to clear the name of someone long deceased, the most notable concerning Derek Bentley who was hanged for the murder of a policeman. After many different court challenges, he was finally granted a Royal Pardon.

An attempt to clear the name of infamous murderer Dr Crippen hit a stumbling block in 2009 when the Criminal Cases Appeal Commission refused to refer the case to the Court of Appeal.

The Criminal Cases Review Commission decided James Crippen was not a "properly interested person" in the case and there was no real possibility the Court of Appeal would hear it.

"Without an individual who has a real possibility of being approved by the Court of Appeal, there could be no court hearing and so no purpose would be served by the commission carrying out a review of the case," said a CCRC spokesman.

Did the Clifford appeal succeed?

It didn’t, the court refused leave.

How We Can Assist?

We are experts in criminal law, if you are concerned about a conviction or sentence, even if that is in relation to a person who is no longer alive, do not hesitate to contact us so that we can discuss your options.

Contact Carys Parry on 01758 455 500 for prompt advice.


Prosecution Time Limits06.03.19 Prosecution Time Limits

Last week the Defence Secretary Gavin Williamson suggested a 10-year time limit ( a Statute of Limitations) on the prosecution of soldiers accused of murder during military engagement. This proposal was in response to reports that British soldiers may face prosecution over deaths during the Northern Ireland troubles in the 1970s and 80s.

So, what time limits if any currently apply in England and Wales?

We categorise offences into three groups:

(1) Summary only offences - offences that can only be tried in the magistrates' court.
(2) Indictable offences (or either-way offences) - offences that may be tried either in the magistrates' court or the crown court.
(2) Indictable only offences - offences that may only be tried in the crown court.

Summary Only Offences

In general, proceedings must be commenced within six months of the criminal act that is being complained of.

There are however lots of exceptions to this, in particular, affecting welfare benefits, regulatory crime, animal cruelty and immigration cases. These exceptions allow proceedings to be commenced much later (sometimes as much as three years) if certain conditions are met.

There is a great deal of case law concerning the calculation of time limits, and it is common to see offences commenced in breach of the rules. When spotted, this will bring the prosecution to a halt.

With the new Single Justice Procedure for road traffic, railways and other offences, we are seeing an alarming number of cases being charged in breach of statutory time limits - if in doubt, please check with us.

Other cases

In relation to indictable and indictable only cases, the starting point is that there is no time limit.

It is very common to see offences, particularly sexual offences, prosecuted a great many years after the events complained of.

Historical (alleged) sexual and other offences can create significant difficulties for defendants so many years after the alleged events as it can make defences such as alibi all the more difficult to establish.

As time passes so too does witness memory and recollection, false accounts can seem correct ones, and important evidence can disappear.

The response of the Court of Appeal to these defence complaints is that they are a 'matter for the jury' and can be dealt with by directions to the jury to make proper allowance, and of course, only convict if sure.

Wherever possible we look to explore other appropriate avenues to redress the balance.

This may take the form of an application to exclude evidence, or an application to bring the case to a halt (referred to as 'staying proceedings') as to continue would amount to an 'abuse of process'.

Is an abuse of process argument easy to win?

No, an abuse of process argument is notoriously difficult to win. This leads many to believe that they are therefore mostly pointless and, in those circumstances, don't bother at all.

This is not a strategy that we believe in, and we will always advance arguments where there is a prospect of success.

In Attorney-General’s Reference (No 1 of 1990) [1992] QB 630 the court held:

“Firstly, it is for the defence to prove, on the balance of probabilities, that the continuation of the proceedings would amount to an abuse of the process of the Court and should, therefore, be stayed.

Secondly, stays of proceedings in such circumstances should be the exception rather than the rule, and where the application for a stay is based on delay a stay should be an exception rather than the rule even if the stay could be said to be unjustifiable. Still more rarely should a stay be imposed in the absence of any fault on the part of the complainant. No stay should be imposed unless the defendant shows, on the balance of probabilities, that because of the delay he will suffer serious prejudice to the extent that no fair trial can be held.

The third proposition of law that seems to me to arise from the authorities is that the judge considering an application to stay of this kind may have regard to his powers to exclude evidence, to give appropriate directions to the jury about the delay, and in particular to give directions to the jury about the difficulties which the delay has presented to the defence.

The fourth relevant proposition of law, as it seems to me, is that the judge may also take into account the extent to which a prosecution case depends on contemporaneous documents. The more it does so, the more difficult it will be for a defendant to establish that an indictment will be stayed.

Fifthly, where delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints about sexual abuse.”

A seemingly more liberal approach was taken in R (Flaherty) v City of Westminster Magistrates’ Court [2008] EWHC 2589 (Admin) where a delay of 2 years (inactivity of the prosecution) during enforcement proceedings was held to amount to an abuse of process, and in Ali v CPS [2007] EWCA Crim 691 where a delay of 7 years was sufficient to support a stay for abuse where documentary evidence pertinent to the complainant’s credibility had been lost.

How we can assist?

We understand the complexities of criminal law and fight hard on your behalf. To discuss any criminal law matter, please telephone Michael Strain on 01758 455 500 for immediate assistance.


GPS Electronic Monitoring, Big Brother Will be Watching20.02.19 GPS Electronic Monitoring, Big Brother Will be Watching

The government has announced a national rollout of GPS electronic tagging which will mean 24/7 location monitoring of those wearing the tag.

The tag is now available in three Probation areas; the North West, Midlands and North East. Location monitoring will go live in the South East, South West and Wales by April 2019.

There will also be a pilot in London to monitor offenders released from prison for knife-related offences.

The rollout follows a 15-month pilot in 3 areas and an independent process evaluation of the GPS location monitoring pilot has informed the rollout process.

How the GPS tag works

The tag remotely captures and records information on an individual’s whereabouts at all times. The tag receives location signals from satellites and then communicates location data via a mobile phone network to a case management system.

Who is the tag for?

The tag is for individuals who would benefit from their whereabouts being monitored in the context of violent offences (including domestic violence), harassment, gang crime, football-related offences and multiple theft offences. An assessment will take place on the basis of risk level, previous offending, motivation to change, ability to manage the tag and other sentence requirements. In the pilot scheme, those without a fixed address or with serious identified mental health or learning disabilities were not suitable.

In particular, it is for:

  • Individuals on court-imposed bail who would otherwise be remanded in custody;

  • Offenders given a suspended sentence order or community order who would otherwise have been given a short custodial sentence;

  • Offenders on HDC where risk could be managed more effectively by a GPS tag than a radio frequency (curfew) tag;

  • Offenders not complying with licence conditions where enforcement action was being considered and offenders being considered for re-release after recall; and

  • Offenders on a life sentence or IPP being considered for release by the Parole Board.

In respect of court-imposed bail, individual police forces can choose to roll out the service as soon as it is available in their region, so even if you are in one of the newly introduced areas this may not be an option for you yet.

What is the tag for, are there any benefits?

The tag is said to support effective management of offenders and those on court bail in four ways:

  • Offender rehabilitation;

  • Facilitating risk management;

  • Informing decisions about whether a wearer should be recalled to custody or court

  • Providing evidence to exonerate or link a wearer to a crime.

A benefit is seen in the more detailed information that is received from the monitoring centre in respect of non-compliance or breach. This provides more nuanced intelligence about behaviour to enable informed decisions on action to be taken over a breach or non-compliance. Rehabilitation is supported as access is gained to historical data as to how the wearer spends his time which helps inform discussion in relation to lifestyle and behaviour and identify potential concerns.

In addition to relieving pressures of other rehabilitative services, there is an obvious benefit in the safeguarding of victims.

Conditions

Location monitoring can be used to enforce an exclusion zone from an area or specific address; the tag will vibrate to remind the wearer if they are in a prohibited area. A restriction could be imposed from going within a certain distance from a given point or address of a victim or known criminal associate. The tag can also be used to enforce attendance at specific activities or appointments, as well as stand-alone monitoring and/or a curfew.

Are there any concerns to be addressed?

The review that followed the pilot identified a number of potential issues that should be addressed before a national rollout. These were gaps in the infrastructure, adequate processes being in place to support effective information sharing, staffing levels, a lack of detail in reports and interpretation of the information, delays in notification of breaches and problems with the daily requirement for charging of the tag.

How can we help?

It is hoped that the potential issues outlined above have been addressed prior to the rollout, but as with anything new, there may be teething problems. If this affects you and your tag, we can help you. We can advise you whether you would be considered for such monitoring and/or whether it is appropriate in your case.

Should you wish to discuss any aspect of your case, please contact Carys Parry on 01758 455 500


Ms. Nicola Jones upon her appointment as a circuit judge on the Wales circuit12.02.19 Circuit Judge Appointmenton: Ms. Nicola Jones

WE as a firm wish to congratulate our consultant solicitor, Ms. Nicola Jones upon her appointment as a circuit judge on the Wales circuit. Nicola will commence her new role at Cardiff on the 25th February 2019 and we are sure she will be a conscienscious and fair judge with a long and accomplished career ahead of her. Congratulations Nicola and best wishes from us all.

 




Voyeurism and 'Upskirting' - Government Acts to Strengthen Law06.02.19 Review of the Parole Board

The Parole Board is an independent body that carries out risk assessments on prisoners serving certain sentences to determine whether they can be safely released into the community. When a person is considered to be fit for release it means that their risk has been reduced to a level where it is low enough to be effectively managed in the community, not that they pose no risk at all.

Last year the Parole Board decided that the so-called ‘black cab rapist’, John Worboys, was fit for release. Various challenges were made to the decision and it was subsequently overturned by the High Court, and he remains in prison. As a result of that case the Parole Board system was reviewed, following the review there was a public consultation on further reforms. The government have now reported on the outcome of the further review and announced various changes to be introduced.

Reconsideration mechanism

The main change is to create a new reconsideration mechanism. A model has been developed for how this should operate, and it will apply where it appears the decision is legally flawed or meets judicial review type criteria. A victim liaison officer will advise victims on how the process operates and the timescales involved. The representations will be made to the Public Protection Casework Section so there will be no need for court proceedings, thereby reducing the cost considerably. The PPCS will then refer appropriate applications to the Parole Board for reconsideration.

Prisoners will also be able to apply for reconsideration if they believe a decision not to release them was flawed. These applications will be made directly to the Parole Board.

Victims

A Victim Contact Scheme is to be rolled out to a wider range of victims with an aim to improve victim engagement and communication. Victims will be provided with information on the sentence, how it operates and when a prisoner is likely to be considered for release.

A victim can make representations to be considered by the Board for licence conditions and will be told the extent to which the representations were considered, and a decision summary can also be requested. A Victim Personal Statement can be produced, and the Victims’ Code will contain a presumption that those who wish to read out their VPS can do so unless there is good reason not to, such as safety or security issues. A victim will also be able to request that their VPS is not disclosed to the offender.

Transparency and openness

The Parole Board will publish a series of Standard Practice guidance to provide clear and public information about what sort of information and factors are taken into account in decision making. Consideration was given to allowing public access to hearings; this is not to be allowed due to the privacy, security and practical barriers as the hearings are held in prisons.

Evidence requirements

Standard Directions on evidence will be published to make clear the standard requirements for parole cases, and the requirements for a “core dossier” will be set out. New rules on service and transmission of evidence will be introduced along with new timescales. Crucially, guidance has now been issued outlining how wider alleged offending can be taken into account. This means that offences that haven’t resulted in conviction can, for the first time, be considered.

Quality assurance

A tailored review (see below) will look at statutory options which could include the creation of quality assurance or inspectorate style functions. Training will take place for members on how to deal with unconvicted offences, and there will be mandatory training on effective questioning skills.

Efficiency and effectiveness

Measures are planned to ensure cases are processed and concluded in a robust and timely way. A new Policy Framework will implement identified improvements to timescales, and the Standard Practice guidance will clarify the procedures and processes to follow.

What happens now?

Some of these measures are already being introduced and others are expected over the coming months. A Tailored Review of the Parole Board will now take place to consider whether there is a case for further, more fundamental, reforms. This will include considering whether the Parole Board should be reconstituted to become a judge-led tribunal and whether the powers or responsibilities conferred on the Board should be changed.

How can we help?

If you would like to discuss any aspect of your case, or how your sentence may be affected by this review, please contact Bethan Williams on 01758 455 500


05.02.19 Causing Death by Dangerous Driving - Sentencing Issues

In a recent case His Honour Judge Jeremy Richardson QC was faced with the task of sentencing 3 offenders for their part in causing the death of 4 people, and seriously injuring 3 others. The main offender Elliot Bower received a total prison sentence of 11 1/2 years.

The offence of causing death by dangerous driving carries a maximum prison sentence of 14 years, but what happens if 4 deaths are caused during a single incident, does the total rise to a maximum of 56 years?

The answer to that question is no, the maximum remains at 14 years.

There is nothing wrong in principle with consecutive prison sentences and had the defendants committed 4 offences over 4 days, causing one death on each occasion, the theoretical maximum open to the Judge would actually have been 56 years (i.e. 4 x 14 years). So, why not in this case?

The Judge was obliged to follow the case of R v Jaynesh Chadusama [2018] EWCA Crim 2867 which led to the Judge observing:

"I am compelled to take 14 years imprisonment as the maximum sentence open to me where multiple fatalities arise from a single incident of dangerous driving."

The Judge did, however, have the following to say, which indicated his general unease as to the state of the law:

"Before passing sentence, I wish to make this observation. It is my intention to refer these sentencing remarks to the Secretary of State for Transport. I am aware that HM Government has embarked upon a review of extant road traffic legislation including sentencing. It is not for me to recommend changes in the law. I simply invite those who
have that responsibility, namely the Secretary of State, to consider the following point.

It may be worthy of consideration whether a court, when there are multiple deaths arising from a single episode of dangerous driving, particularly when the dangerous driving is of an exceptionally serious kind – as in this case, should have power to impose a higher level of custodial sentence than would be permitted by the current law.

I merely call this case to the attention of the Secretary of State for consideration.

It is not for me to make this observation, but there may be some who feel that Parliament may wish to revisit the issue of the powers available to a court when sentencing in an exceptionally serious case of this kind.

I repeat what I said earlier – the sentence I pass today is governed by the law which is operational today. I am bound by that law and I shall pass sentence in accordance with it."

Will the law change?

The Attorney General in the days following this case indicated that a change in sentencing policy is likely. This will be more easily achieved not by trying to reverse the rule in R v Jaynesh Chadusama, but by simply increasing the maximum penalty available to one of life imprisonment.

It is also likely that we will see increases in other death by driving sentences, and perhaps even a new offence covering the causing of serious injury.

How can we help?

This is only a general overview of the law. For in-depth advice on any criminal law issue, call Michael Strain on 01758 455 500 to discuss your case.


31.01.19 Broken Criminal Justice System

 

 


Voyeurism and 'Upskirting' - Government Acts to Strengthen Law30.01.19 Voyeurism and 'Upskirting' - Government Acts to Strengthen Law

The Voyeurism (Offences) (No 2) Bill completed its parliamentary journey on 15th January 2019 and will shortly receive Royal Assent. As the Act will create new criminal offences, the usual convention is that at least two months will pass before the offence comes in to force.

Why was this law passed?

This new law deals with 'upskirting', which is:

'...the practice of taking a photograph up a person’s skirt or clothes without their consent.'

Parliament was told that:

"The law in England and Wales does not contain a specific criminal offence for upskirting, and the practice is currently prosecuted under one of two offences: outraging public decency (OPD) or voyeurism. OPD requires that an offence is: “lewd, obscene and disgusting to such an extent as to outrage minimum standards of decency”; two or more persons (excluding the perpetrator) must be present during the act or display, whether or not they are aware of the act or display or are outraged by it; and it must occur in a public place.

Alternatively, the voyeurism offence, contained in section 67 of the Sexual Offences Act 2003, stipulates that a person commits an offence where, for the purposes of sexual gratification he/she observes, operates equipment with the intention of enabling another person to observe or records a person doing a private act, knowing the person does not consent. The offence also covers installing equipment to enable either themselves, or another person, to commit an offence of voyeurism."

Concerns have been expressed that these laws are inadequate in response to upskirting due to the legal requirements necessary to bring the action within the scope of one of the 2 possible offences. Further, as neither of the two options is a sexual offence, any offender will avoid notification requirements (commonly referred to as being put on the sex offenders register).

So, what will change?

A new section 67A will be inserted into the Sexual Offences Act 2003.

New section 67A subsection 1 would mean that a person (A) commits an offence if they operate equipment beneath the clothing of another person (B) to allow either themselves or another person (C) to observe person B’s genitals or buttocks or the underwear covering them, in circumstances in which they would otherwise not be visible.

Subsection 2 mirrors the provisions of subsection 1 and would mean that a person committed an offence where a person (A) records an image beneath the clothing of another person (B) which is of B’s genitals or buttocks, or the underwear covering B’s genitals or buttocks, in circumstances where the genitals, buttocks or underwear would otherwise not be visible.

For both offences person A would operate equipment or record an image without B’s consent and without reasonably believing that B consented. In addition, under subsection 3 the purpose of person A in operating equipment (subsection 1) or recording an image (subsection 2) must be:

• obtaining sexual gratification (whether for A or C);
• humiliating, alarming or distressing B.

The new offences would be triable either way. The maximum sentence following summary conviction (in a magistrate’s court) would be six months’ imprisonment, or a fine, or both. The maximum sentence following conviction on indictment (at the crown court) would be two years’ imprisonment.

Notification Requirements

The new Act will also allow that in certain circumstances offenders could be placed on the sex offenders register. These circumstances are:

• For offenders aged over 18-years old: the offence was committed for sexual gratification and either the victim was under 18, or the offender has been sentenced to imprisonment; or detained in hospital; or made the subject of a community sentence of at least twelve months.
• For offenders aged under 18-years old: the offence was committed for sexual gratification and the offender is or has been sentenced to imprisonment for at least twelve months.

How can we help?

This is only a general overview of the law. For in-depth advice on any criminal law issue, call Michael Strain on 01758 455 500 to discuss your case.


Sleepwalking – Is It A Defence?29.01.19 Community Protection Notices

Community Protection Notices (CPNs) are currently attracting a lot of attention from the legal community, and we have many concerns concerning the way in which they are presently being used.

In a recent case (Stannard v The Crown Prosecution Service [2019] EWHC 84 (Admin)) a CPN in the following terms was challenged:

The notice now requires that you:

  1. are not to enter the area of Reading Town Centre as defined by the map overleaf unless there is a prearranged appointment with a court or probation worker.

  2. are to give notice of a prearranged appointment to Thames Valley Police by calling '101' at least 24 hours prior to the relevant time.

  3. are not to attend within 100m of any McDonald's restaurant in Reading.

  4. are not to be in a group of more than 3 individuals including yourself."

The Appellant submitted at trial that there was no case for him to answer on the alleged breach because the CPN included requirements that were unreasonably wide – in the sense that they were neither necessary nor proportionate to address the risk posed by the Appellant – and it was consequently unlawfully imposed. As a result, the CPN was invalid and could not be enforced against him.

The District Judge rejected that submission on the basis that it was not for her to consider the validity or otherwise of the CPN, and any argument relating to its invalidity could and should have been raised by way of an appeal against the CPN. The trial continued. The judge found the breaches established on the evidence, and the Appellant was convicted.

The central issue raised on this appeal was whether, in the case of a prosecution for breach of a CPN, it is open to a defendant to argue by way of defence that the CPN was and is invalid.

The court ruled that '...the District Judge was therefore right to conclude that the CPN was binding on (and enforceable against) the Appellant unless and until it was varied or discharged: accordingly, she could not look behind it and did not have jurisdiction to hear the Appellant's arguments going to the validity of the CPN.'

However, the court went much further and issued the following guidance which we believe has the potential to be extremely helpful:

"Of course, if the CPN remains as it is, and if the Appellant is again prosecuted for breach, he will not be able to raise the argument he has raised before District Judge Toms and us by way of defence at trial. However, we make clear that, the failure of this appeal does not mean that the Appellant is fixed with the CPN in its current form for evermore. If he has concerns about the scope of the CPN or its indeterminate nature, he should raise them with the Thames Valley Police and seek a variation of the CPN. If they wrongly refuse to vary, judicial review will be available.

More generally, we emphasise that those who are authorised under section 43(1) of the 2014 Act should recognise that they have power not only to issue, but also to vary and discharge a CPN in appropriate circumstances. It is not for this court to tell authorised persons how to go about their decision-making, but we would think it a minimum that such persons should operate a system for receiving and adjudicating requests for variation or discharge of CPNs; and that relevant information should briefly be given with any CPN about how to seek a variation or discharge (e.g. on a change of circumstance), in addition to information required by statute about a statutory appeal.

CPNs constitute a significant interference with an individual's freedom; they must be clear in their terms and proportionate in their effect. We make two final comments. First, we consider it would be best practice and consistent with legal certainty for any CPN to be limited in time, with that term clearly stated in the CPN. Secondly and more generally, we emphasise the need for authorised persons prior to issuing a CPN to consider with care the prohibitions and restrictions imposed to ensure that they go no further than is necessary and proportionate to address the behaviour which has led to the CPN being made."

How can we help?

We can assist you with all queries relating to Community Protection Notices. This is only a general overview of the law. For in-depth advice, call Michael Strain on 01758 455 500 now to get in touch and discuss your case.


Sleepwalking – Is It A Defence?23.01.19 Government Unveils New Domestic Abuse Legislation

On Monday the government unveiled its new strategy to tackle domestic abuse. This follows a consultation exercise carried out last year which drew over 3,000 responses.

The new measures are:

• Introducing the first ever statutory government definition of domestic abuse, which will include economic abuse
• Establishing the office of the Domestic Abuse Commissioner and setting out the Commissioner’s functions and powers
• Providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order
• Prohibiting perpetrators of abuse from directly cross-examining their victims in person in the family courts, and also giving the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’ evidence or cause the witness significant distress
• Creating a statutory presumption that complainants of an offence involving behaviour which amounts to domestic abuse are eligible for special measures in the criminal courts
• Enabling domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody
• Placing the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing
• Ensuring that where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy) this must be a secure lifetime tenancy
• And supporting ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), by extending the extraterritorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.

While we will have to await the passage of the bill through parliament to see the final package, one thing of particular note to us as criminal lawyers is the proposal to create a Domestic Abuse Protection Notice and Domestic Abuse Protection Order.

This will be based on the existing regime for criminal behaviour orders (formerly known as ASBOs). Breach of these orders will carry imprisonment of up to 5 years.

While the existing legislative provisions could be used in the context of domestic violence, they rarely are. What we have seen over the years is the specific tailoring of the framework to meet particular problems (in terrorism and trafficking for example). We can, therefore, expect the effect of these orders to impact quickly, resulting in stiff prison sentences for those who breach them. The government estimates that hundreds more offenders may face imprisonment each year.

We do however foresee some real problems. Domestic abuse is a particularly complex societal problem, relationships are often problematic and rocky, and it is possible that breach will be used as a 'weapon' against many defendants. It will, therefore, be imperative to ensure that recipients of these orders understand the severe impacts and consequences that will follow. It will also be essential to ensure that orders are only made in appropriate cases.

As a firm, we closely monitor all legislative developments and will keep you updated as the bill progresses through parliament.

How can we help?

Cases of alleged domestic violence are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and navigating a successful path through the long and stressful court process.

This is only a general overview of the law. For in-depth advice, call Carys Parry on 01758 455 500 now to get in touch and discuss your case.


Sleepwalking – Is It A Defence?21.01.19 Sleepwalking – Is It A Defence?

You wake up one morning and the horror of the night before quickly unfolds.

Blue lights and uniformed police officers greet you, search your house and find your girlfriend dead in the bathroom.

You have no memory of anything happening overnight, and she was alive and well when you went to sleep.

You are arrested and while riding in the back of the police car, can only think that you must have done it while asleep. It sounds almost comical that this could actually be a viable defence, but the reality is that it could well be.

Are you guilty?

Sleepwalking is most often used as a defence to violent or sexual offences (often referred to as ‘Sexsomnia’) and is a legitimate defence to both.

It falls under the defence of automatism, which is further broken into two types. Which type of automatism will depend on the cause: internal (insane automatism) or external (simple automatism).

Both of these mean you didn't act knowingly but acted automatically and without the intention to commit the crime.

It is likely that is this state was brought about as a result of self-induced intoxication, the defence will not be available (Finegan v Heywood The Times, May 10 2000).

Insanity or non-insane automatism?

Insane automatism is a more difficult defence to put forward, requiring the defence to prove that it is more likely than not the explanation for the offence, following the rules set out in the M’Naghten case. It also needs medical evidence of an internal cause.

Simple automatism, on the other hand, requires the defence only to provide enough evidence to make the issue "live”, in other words to make it a realistic possibility that you acted unknowingly.

Expert evidence will probably be required in both cases:

"I do not doubt that there are genuine cases of automatism, but I do not see how the layman can safely attempt, without the help of some medical or scientific evidence, to distinguish the genuine from the fraudulent" (Hill v Baxter (1958) 1 Q.B. 277, 42 Cr. App. R. 51).

The prosecution will then have to disprove it so that the jury can be sure you acted knowingly.

There is some legal debate in other jurisdictions concerning the class in which sleepwalking might fall, but the courts in England and Wales are yet to grapple with this. Which is just as well, as the law is complicated enough as it is.

What are the outcomes?

Non-insane automatism, if accepted, will lead to a simple acquittal: not guilty.

Insane automatism is slightly trickier and results in a special verdict: not guilty by reason of insanity. The sentencing options available to a judge are then limited to an absolute discharge, a supervision order, or a hospital order.

How can we help?

Sleepwalking cases are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.

This is only a general overview of the law. For in-depth advice, call Bethan Williams on 01758 455 500 now to get in touch and discuss your case.


Plead in Haste, Regret at Leisure16.01.19 Plead in Haste, Regret at Leisure

It should go without saying that no plea ought to be entered in any criminal case unless and until the case has been appropriately considered.

Regrettably, we see an increasing number of people, who have attended court alone, being pressured into entering a plea without having had the advantage of legal advice.

It is vital in all cases that legal advice is sought as early as possible to ensure the best outcome can be secured.

Many people believe that following a guilty plea, it is a straightforward matter to change their mind and enter a not-guilty plea instead. The reality, however, is that reversing a guilty plea can often be very difficult and requires a carefully crafted legal argument to be presented to the court.

Ordinarily, a court will only set-aside a guilty plea if it can be shown that the plea is equivocal.

The relevant principles have been rehearsed in many cases, but perhaps most famously in P. Foster (Haulage) Ltd v Roberts [1978] 2 All ER 751 where the court observed:

"For a plea to be equivocal the defendant must add to the plea of guilty a qualification which, if true, may show that he is not guilty of the offence charged. An example of this type of qualification is found where a man charged with handling a stolen motor car pleads 'guilty to handling but I didn't know it was stolen'. It is not every qualification which makes a plea of guilty equivocal; for example, the burglar charged with stealing spoons, forks and a camera, who pleads 'guilty but I did not take the camera' is making an unequivocal plea to burglary."

Other factors, such as being influenced by a belief only a guilty plea would secure bail, may also result in a plea being judged as equivocal.

In a number of recent cases, a plea has been treated as equivocal where the defendant was not informed of a legal defence that was available to him, resulting in convictions being set-aside.

In Malak [2018] EWCA Crim 1693 a case where the appellant was not informed by his barrister of an available defence the court held:

"We agree with counsel's description of the oversight as rather fundamental. This was a clear case of an equivocal plea, as [the prosecution] accepts."

This is an interesting observation by the Court of Appeal as many defendants who enter pleas in the absence of legal advice would have little if any legal knowledge, it suggests that the scope for setting aside a guilty plea may well be broader than many lawyers appreciate.

In appropriate cases, we may also be able to review the advice given by former lawyers to ensure the correctness of any plea.

How we can help

If you require legal advice concerning any prosecution, please contact Michael Strain on 01758 455 500 as soon as possible.


Cyfnodau byr yn y carchar am ddod i ben?15.01.19 End of The Road for Short Prison Sentences?

The big news story of the weekend was the surprising news that the Prisons Minister is considering whether to abolish the power to impose short prison sentences, those of 6 months or less.

Arguing for the need for reform, Mr Stewart told the Daily Telegraph Magazine: "You bring somebody in for three or four weeks, they lose their house, their job, their family, their reputation.

"They come (into prison), they meet a lot of interesting characters (to put it politely) and then you drop them on to the streets again.

"The public are safer if we have a good community sentence... and it will relieve a lot of pressure on prisons."

Short sentences are seen as ineffective, allowing little if any time for rehabilitation and causing massive disruption to offender's lives, resulting in even higher rates of repeat offending.

Supporters of the shorter sentence point to the salutary effects of a 'short, sharp shock' and community respite from offending.

This is one of those debates where there is at least some evidence to support all viewpoints.

But it does beg the broader question of what prison is for. Is it to deter, punish, rehabilitate, something else, or a combination of things.

Once we work out what we seek to achieve by imprisonment, the question then to be asked is, does it work?

Take a case in point also reported this weekend - two brothers imprisoned for three months following a conviction for perverting the course of justice (trying to evade penalty points for a road traffic offence).

Did imprisonment deter them? Clearly not. Will it punish them? The answer to that is clearly yes, but if they then lose their jobs and homes, is it disproportionate? Could we have imposed an altogether different and more worthwhile punishment, such as unpaid work in the community?

The answer to these and other questions concerning penal policy have been debated for a very long time, and traditionally, political parties have avoided any debate that has a flavour of being 'soft on crime'.

So, it is refreshing to see a government minister willing to grapple with these complex issues, for the greater good.

Any change will require legislation so should not be expected for another 12 months or so, but in the meantime, it does allow advocates an opportunity to debate these issues with sentencing judges.

Maybe, just maybe, even the introduction of this debate might save some defendants from unnecessary and damaging short prison sentences. We shall certainly try.

How we can help?

If you require legal advice concerning any prosecution, please contact Bethan Williams on 01758 455 500 as soon as possible.


Slur11.01.19 Soubry and the Nazi Slur – An Offence?

Was it an offence to accuse Anna Soubry of being a Nazi whilst she was broadcasting on Sky News?

Potentially, is the answer.

The Public Order Act 1986 contains the most likely candidates for any prosecution, in sections 4, 4A, and 5.

These sections deal with ‘lower level’ public order offences.

What are those provisions?

Section 4 is also known as ‘threatening behaviour’, and sections 4A and 5 are both types of ‘disorderly behaviour.’ Section 4 is the most serious, with section 5 the least serious.

The actions of the protestors during the interview, and then later on the street, might be one of these offences.

Which offence is it?

It will be for the Crown Prosecution Service to decide which to charge, and the Court to determine whether the people are guilty. The two behaviours could be charged together, individually, or not at all.

It needs to be remembered that the prosecution will be considering not only the fact that Miss Soubry may have been affected by the behaviour, but also other members of the public around the parliamentary estate.

What about the shouting?

That seems like it might fall under either section 4A, or section 5.

Section 4A says that a person is guilty of an offence if he uses threatening, abusive, or insulting words or behaviour and causes harassment, alarm or distress.

He also has to intend to cause a person harassment, alarm or distress.

Section 5 says that a person is guilty of an offence if he uses threatening or abusive words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress.

The critical difference is the intention of the person shouting the words.

Section 5 also doesn’t require any harassment, alarm or distress to actually be caused, just to be likely to be caused.

And the behaviour on the street?

That could fall under either of the above, or it might be the more serious section 4.

Section 4 says that a person is guilty of an offence if he uses threatening, abusive or insulting words or behaviour towards another person.

He must also have the intention to cause that person to believe unlawful violence will be used against them, or to do it in a situation where that person is likely to think that violence will be used against them regardless of intention.

Did the protestors definitely commit an offence?

No. The police will continue to investigate and gather evidence. They may conclude there is not enough evidence to ask the CPS to charge the protestors, and the CPS may decide that there is not enough evidence if they are asked.

The protestors may be charged and acquitted.

There are also free speech considerations. Article 10 allows for freedom of expression and shouting that Anna Soubry is a Nazi may be protected by that.

Article 10 does allow for free speech to be curbed for the prevention of disorder or crime.

What if I shouted at Anna Soubry?

Each public order offence is different, and each case is too. This is a general overview of the law.

Over the last few days we have seen definitive opinions on this subject, on both sides of the line.

In our view this rush to judgement is somewhat premature, all public order offences need to be seen in context with the full facts carefully investigated.

If you need specialist advice, then get in touch with Carys Parry on 01758 455 500 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.


Family11.01.19 Parental Dilemmas That Could Land You in Prison

It is a nightmare scenario that potentially any parent could face. A child returns home, late at night in an agitated state.

He hurriedly tells you that he has been in a fight, it wasn't his fault, but someone has been hurt, badly. Further details are not forthcoming, but he thinks the police will be coming to arrest him. Thinking fast, and in order to protect, you take his clothes and put them in the wash.

Before you can even think of assembling an alibi for him, the police have kicked down the door and found your son cowering in his bedroom. He is naked, and there are no clothes in sight.

The experienced officer knows just what to do, rushing through to the kitchen and unplugging the washing machine. It will later be taken away so that the contents, including the water, can be forensically tested.

Unsurprisingly your son is arrested, but what fate awaits you?

Well, how this story ends depends on precisely what the police discover, but it is often proved that a terrified parent has acted to protect their child.

The act of putting those clothes in the washing machine or providing a false alibi amount to attempts to pervert the course of justice.

In other scenarios family or friends might provide some safe harbour for a person fleeing the police. Again, this is a serious criminal offence if done knowingly.

If convicted a prison sentence will inevitably follow, and another life will be shattered.

In some cases, there might be a viable defence, be assured that we will find one if it exists. In other cases, the task is to mitigate, to tell the story from the parental perspective. What do you think you would do in this scenario? Or more to the point what would you do if it became a reality?

We might not like to think so, but any one of us could be caught up in a nightmare like this.

All manner of people can find themselves caught up in the justice system. We don't see criminals, we see people, with their own unique set of circumstances.

How we can help

If you want to be seen as an individual and not a case number, defendant or criminal, then get in touch with Michael Strain on 01758 455 500 so that we can discuss your options.


Fly-tipping02.01.19 It’s a Genuine Fake!

Unauthorised use of a registered trademark is a criminal offence, so selling fake goods at a car boot sale or on internet selling sites can get you into serious trouble.

Few people appreciate the offences that can be committed, and ignorance is usually no defence. This article seeks to explain the background to some offences in respect of trademarks.

What is a trademark?

A trademark is a badge of origin, any sign capable of being represented graphically, which is capable of distinguishing goods; they may consist of words, personal names, designs, letters, numerals or the shape of goods.

What are the offences?

The offence is to apply the mark (that is the copied trademark), sell goods with it on, or have goods in your possession in the course of a business.

There are also offences covering the copying of a symbol or sign on labelling, packaging or advertising. The law covers all goods from baseball caps and handbags to wheel trims and counterfeit drugs.

Is there any defence?

It is a defence to show that you believed, on reasonable grounds, that the use of the sign was not an infringement of the registered trademark.

You need to demonstrate that not only did you honestly believe that the sign did not infringe registered trademarks but that you also had reasonable grounds to believe that.

If you believed that the goods were genuine, that is also a defence.

For the offence to be committed the trademark has to be one that is registered and also one that has a reputation in the UK.

If the fake is terrible quality that is no excuse, the fact that no one would believe it was genuine does not matter as the use of the trademark is still an offence.

What can happen to me?

The offences are serious, possession of a few items can lead to a community order while a central role in a large operation can mean a sentence of up to ten years imprisonment.

A conviction for this type of offence can also lead to confiscation proceedings being brought against you. These proceedings involve an assessment of the benefit or profit made from the offence, and if there has been a benefit, you can be ordered to pay that back from your assets. Even if you did not have any assets an order can be re-visited in the future should you come into any money.

How can we help?

If you would like to discuss any aspect of your case, please contact Carys Parry on Carys@strainandco.co.uk or 01758 455 500


Computer hacking02.01.19 Computer hacking

Hacking has been in the news a great deal in the last couple of years, for example, the 2016 US Presidential Elections, the extradition case of Lauri Love and the hacking of user accounts of various large companies in order to steal personal information. At the other end of the spectrum we see cases of police officers unlawfully accessing police computers (often charged as misconduct in public office).

What is hacking?

Put simply hacking is unauthorised access. The law (Computer Misuse Act 1990) says that hacking is:

- causing a computer to perform any function with intent to secure access to any program or data held in any computer when;
- that access is unauthorised; and
- the person knows at the time when he causes the computer to function that that is the case.

Why would someone hack a computer?

Some people like to test their abilities, to see if they can get through high-security measures. Others may want access to be able to commit further criminal offences, the information obtained could be used for fraud, blackmail or other similar offences.

It is not necessary for a person to intend to use any of the information gained. The simple offence is the intent to gain access to information or data to which you would not usually have access, although see below for other offences.

Are there other offences?

As well as the simple offence set out above (unauthorised access), there are further offences of unauthorised access with intent to commit or facilitate further offences; unauthorised acts with intent to impair the operation of the computer; and unauthorised acts causing or risking serious damage.

What are the penalties?

These offences can be dealt with at the Magistrates Court or the Crown Court depending on the seriousness. The maximum penalty at the Crown Court is two years imprisonment and/or a fine for the simple offence of unauthorised access.

Where the offence is committed with intent to commit further offences, the maximum sentence becomes five years, and if committed with intent to impair operation the maximum sentence is ten years.

By way of examples, a man who gained access to websites and deleted data to cause inconvenience as revenge for his dismissal was given nine months’ imprisonment.

A man accessed the Welsh Assembly computer system on twenty occasions over a period of a week, reading a number of restricted, sensitive emails, was given four months’ imprisonment. In another case 2 years imprisonment was imposed for introducing a number of viruses to the internet, causing unknown damage.

In many cases the sentences are much more severe.

How can we help?

It is important that if you are under suspicion of committing an offence that you speak to a specialist before talking to the police. We can help 24 hours a day, please contact Michael Strain on 01758 455 500 or michael@strainandco.co.uk to discuss any aspect of your case.


Drink Driving - The Reality02.01.19 Drink Driving - The Reality

Many people have an image of a typical drink driver: overweight man, staggering from the pub after an all-day session and getting into his car. A few minutes later that car being pulled over by police officers due to erratic driving.

That is sometimes the story, but not the most common one that we see. It is more likely to be similar to Sue's story.

Sue leaves the party, sensibly gets into a taxi and later catches a few hours sleep before the next workday begins.

She feels a little tired but otherwise perfectly fine. Sue embarks on a leisurely drive along a familiar route until out of nowhere a car appears. Her journey is broken by the sound of scraping bumpers and an angry motorist demanding insurance details. A miserable start to her day!

On the plus side, nobody is hurt, it's a simple insurance job.

That is until the traffic chaos catches the attention of a passing patrol car.

Sue's nightmare is about to begin

Ten minutes later Sue is in handcuffs on her way to a police station. Eight hours later she is charged with drink driving. Two days later she has been banned from driving for 18 months and shamed in the local paper.

A vast number of people find themselves before the court as a result of the 'morning after' effects of alcohol consumption. Whilst we can make assumptions about the average time it might take for alcohol to leave our system, these are rarely accurate in real life. The drink drive limit is quite low, so there is little margin for error. Even quite moderate alcohol consumption in the evening can leave you over the legal limit the morning after.

Otherwise sensible, law-abiding and hardworking people find themselves before a court facing not only a loss of licence but sometimes a loss of employment as well.

How we can help?

We would sooner not see you at all, but if you do face court proceedings, do not confront them alone. We all make mistakes.

Contact Carys Parry on 01758 455 500 or carys@strainandco.co.uk to discuss your case.


Fly-tipping06.12.18 Fly-tipping – ensuring all polluters pay

We all know that fly-tipping is an offence, but did you know you commit an offence if you pass waste to someone who isn’t licensed?

What do you mean by ‘waste’?

This article is referring to household waste, for example, excess rubbish that does not fit in your general collection bins.

How could I commit an offence?

You have a ‘duty of care’ to take all measures reasonable in the circumstances to ensure you only transfer waste to an ‘authorised’ person. Note that if a tradesperson working at your house produces waste, they are responsible for the removal and disposal.

Although most offences of fly-tipping are committed by someone paid to take the waste away rather than the person who produced the waste, this means that you commit an offence if the person you ask to take the waste is not licensed and illegally disposes of it.

What is an authorised person?

This is usually the local authority collection service, a registered waste carrier or an operator of a registered site. You can check if a person is licensed on the Environment Agency website.

What could happen to me?

The government is introducing a fixed penalty notice for breaches of the household duty of care. Currently, you could be offered a caution, warning or be prosecuted for failing to comply with your duty of care. The new penalty notice system provides an alternative to a prosecution.

The penalty will range from £150 to £400; the minimum discounted penalty available will be £120. The penalty is set deliberately at a high rate as otherwise it may still be cheaper to use an illegal waste collector, it is intended to act as a deterrent and is therefore set at a rate that is higher than the cost of legitimate disposal.

The guidance produced by the government for local councils’ states that householders should not be fined for minor breaches and consideration should be given as to whether it is proportionate and in the public interest to issue a notice to a person who is classed as vulnerable.

What if I do not pay the penalty?

If you chose not to pay the penalty you can be prosecuted for the offence through the courts. The typical fine imposed at court is likely to be significantly higher than the penalty notice.

When will the law be brought in?

The law to introduce the penalty is expected to be in force early next year (2019).

How can we help?

If you are invited to attend an interview with any prosecuting agency, such as a local authority, you can have a solicitor present.

Please contact us for expert, tailored advice. If you would like to discuss any aspect of your case, please contact Michael Strain on 01758 455 500 or michael@strainandco.co.uk


Offences Related to State Benefits22.11.18 Restorative Justice

What is it?

Restorative Justice, or RJ as it is sometimes known, is a way of holding offenders to account and can be used as an alternative to a caution or conviction, or alongside a sentence.

What happens?

RJ gives a victim the opportunity to meet or communicate with an offender to help them understand the impact of the crime and provides the offender with the chance to make amends.

This may be done in a face to face meeting, by way of a written apology, or the offender could make amends to the community rather than the victim directly.

Communication takes place in a controlled environment, if the meeting is face to face, for example a facilitator will be present. The meeting would centre on the harm caused and ways to repair that harm.

When can RJ be used?

For any kind of communication to take place the victim must be happy to participate, and the offender has to have admitted the offence and also be willing to take part.

Gareth Thomas, the former Wales rugby captain, chose to deal with his complaint in this way after he was the victim of a homophobic assault.

The young person involved admitted the offence, and it is being dealt with by way of RJ rather than via a caution or through Court.

Mr Thomas said he thought that the offender could learn more through RJ than any other way.

RJ can also be used when an offender has received a prison sentence. Cathryn Walmsley of Bolton was assaulted, the offender pleaded guilty to causing grievous bodily harm with intent, and a four-year term of detention was imposed. Mrs Walmsley read a victim impact statement out in court to set out how the offence had affected her. She also said that she would like to sit down with the offender to discuss what he did, she believes that this may give her “closure”.

It may also assist the offender, and it is hoped in these circumstances that it would reduce the likelihood of any future offending.

Does it work?

Research undertaken by the government in a seven-year period found that there was an 85% victim satisfaction rate and there was a reduction in the frequency of re-offending of 14%.

How can we help?

You are entitled to free and independent advice at the police station, we can advise you whether RJ would be an appropriate option in your case and make representations on your behalf for your case to be dealt with in that way.

If you would like to discuss any aspect of your case, please contact Michael Strain on 01758 455 500 or office@strainandco.co.uk


Offences Related to State Benefits08.11.18 Offences Related to State Benefits

There are two main offences that are prosecuted in relation to benefit fraud, one involves dishonesty, the other does not.

The dishonesty offence

It is an offence to dishonestly make a representation in order to obtain benefit, and this includes a dishonest failure to promptly notify a change in circumstances as well as making a claim that is dishonest from the outset.

The offence absent dishonesty

It is an offence to knowingly make a false statement to obtain benefit, again this can be in an initial claim for benefits or failing to give prompt notification of a change in circumstances.

What does this actually mean?

The following definitions are given:

Dishonesty - has its normal meaning in criminal offences, although the lesser offence does not require dishonesty it does require proof of knowingly failing to notify. The test for dishonesty was recently revisited by the Supreme Court and the result may well be that it is now easier to prosecute for a dishonesty related offence.

Change in circumstances – there must be proof that the offender knew there was a change of circumstances and that the change would have affected a change in benefit.

Changes in circumstance could include starting to live with a partner, gaining employment or a change in finances.

Promptly notify- prompt is to be given its natural meaning and is a matter of fact. It is for the prosecution to prove that it was not prompt. It is therefore essential to explore all of the surrounding circumstances as this may provide a defence, not only mitigation.

Are there other offences?

There are other offences of fraud and false accounting related to benefits that are not covered in this article.

What is the likely sentence?

The non-dishonesty offence an only be dealt with in the Magistrates’ Court and carries a maximum term of imprisonment of 3 months.

The offence involving dishonesty can be dealt with at the Magistrates’ Court or the Crown Court and carries a maximum of seven years imprisonment.

The main factors for consideration in sentencing will be the length of time of the overpayment, the value of benefits overpaid, and whether or not the claim was dishonest from the outset.

A claim that is of high value, over a sustained period and which was dishonest from the beginning is more likely to attract a term of imprisonment.

How can we help?

Prosecutions for benefit offences frequently generate vast quantities of paperwork. We have a great deal of experience in considering such evidence, and our involvement may mean a lesser value is given to the overpayment which can have a direct impact on the potential sentence.

We can also assess any possible defences that may be available to you. Expert advice is crucial if you would like to discuss any aspect of your case, please contact Carys Parry on 01758 455 500 or office@strainandco.co.uk


Inadmissible confessions24.10.18 What is harassment?

There are two distinct criminal offences, one of harassment putting people in fear of violence and one without. Stalking is a similar but separate offence and is not covered in this article.

What does it involve?

There has to be a course of conduct involving as little as two incidents against another person or persons.

The dictionary definition is to “torment by subjecting to constant interference or intimidation”.

The law does not provide a comprehensive definition and there are many actions that can foreseeably alarm or cause a person distress that would not constitute harassment.

The offence is aimed at conduct that alarms or causes a person distress and which is oppressive and unreasonable.

What do the prosecution have to prove?

• That there is a course of conduct;
• which amounts to harassment of another; and
• which the defendant knows, or ought to know amounts to harassment of another.

Additionally, for the more serious offence the prosecution has to prove:

• that the course of conduct causes another to fear that violence will be used against him; and
• that the defendant knows or ought to know that his course of conduct will cause another to fear that violence would be used against him

How do I know it is harassment?

The test of whether you ought to know whether the course of conduct amounts to harassment is whether a reasonable person, in possession of the same information, would think the conduct amounted to harassment. The same test applies in respect of fear of violence.

Are there any time limits?

At least one of the incidents has to have occurred within six months of the charge, for the basic offence without violence.

What about defences?

There are three available defences for the basic offence:

1. that the course of conduct was for the purpose of preventing or detecting crime;
2. that it was conducted under a rule of law;
3. that it was reasonable in the circumstances.

Additionally, it is a defence for the more serious offence if the course of conduct was reasonable for the protection of the defendant or another or for the protection of their or another’s property.

What sentence could I get?

For the offence without violence (the basic offence) up to six months imprisonment can be imposed (2 years if racially aggravated).

For the more serious offence involving fear of violence the maximum sentence was 5 years and is 10 years for offences committed on or after 3rd April 2017 (7 or 14 years if racially aggravated, again dependent on date of offence).

A restraining order can also be imposed, the aim of which is to protect the victim of the offence from further incidents, contact or risk of violence. Such an order can prevent contact with the victim and provide for an exclusion zone around their address. A restraining order can be imposed even if you are acquitted of the offence.

The law in respect of harassment and the potential defences is complicated, and there are other specific offences of harassment (for example of debtors) that are not covered in this article.

How we can assist?

If you are being investigated for or have been charged with this offence please contact our office for further advice and representation, our solicitors are experts in criminal law and can guide you through the complexities. Contact Bethan@strainandco.co.uk or telephone 01758455500.


Inadmissible confessions23.10.18 Inadmissible confessions

The 2015 documentary series Making a Murderer follows the story of two men from Wisconsin who were convicted of sexually assaulting and murdering a woman.

One of the convicted was an impressionable teenager called Brendan Dassey. Dassey’s conviction was overturned in 2016 (confirmed on appeal in 2017) on the basis that his ‘confession’ to the murder was coerced by police officers who exploited his vulnerable nature.

What is the law in the England and Wales?

Provisions in the Police and Criminal Evidence Act 1984 allow courts to reject confessions of this kind on the basis that they were obtained ‘oppressively' or are unreliable. The relevant statutory provisions are ss. 76(2)(a) and (b) and 77 of the Act.

What does “oppressive” mean?

The term ‘oppressive’ has caused problems for the courts. It seems to be agreed that oppression implies some “impropriety” which compromises the confession’s veracity: Fulling [1987] QB 426.

Uncertainty exists, however, as the same sort of behaviour in different cases has led to the confession being excluded in one but not the other: Paris (1993) 97 Cr App R 99; L [1994] Crim LR 839.

What about unreliability?

Aside from oppression, confessions may be excluded on the basis of unreliability. This unreliability may come about via “anything said or done” or something problematic concerning the circumstances in which the ‘confession’ was made.

An important point to note is that the suspect’s own conduct cannot undermine a confession: Goldenberg (1988) 88 Cr App R 285.

Another important reason to exclude a confession on the basis of unreliability is where the suspect is mentally unfit. There is a separate section of the 1984 Act dealing with this: section 77. In particular, this seeks to protect suspects who may be suggestible and may simply go along with police officers’ leading questions about an alleged offence.

Deciding on the admissibility of confessions

The actual process for deciding whether a confession can be admitted is a ‘voir dire’. That is essentially a mini-trial within or alongside the main trial. Section 76(2) of PACE gives guidance on this point.

The prosecution must prove to the criminal law standard that the confession was not obtained in the way alleged by the defence, otherwise it will be excluded. And, although there is some disagreement, the standard position appears to be that the defendant’s evidence at the voir dire cannot be admitted during any trial for the substantive offence: Wong Kam-ming [1980] AC 247.

How we can help

If you are concerned about the conduct of police officers and/or the reliability of a confession made while in custody, please contact Michael Strain on 01758 455 500 or michael@strainandco.co.uk


Inadmissible confessions17.10.18 Focus on 'Dangerous Dogs'

The Environment, Food and Rural Affairs Committee’s report 'Controlling dangerous dogs' calls for a full-scale review of current dog control legislation and policy to better protect the public. The report was published on 17 October 2018.

Is there a problem?

According to the Committee, yes.

In 1991 the Dangerous Dogs Act outlawed certain breeds/types of dog to protect the public from attacks, but since then the number of yearly fatalities has continued to rise.

Hospital admissions for dog attacks have increased by 81% since 2005. An unacceptably high number of victims suffer horrific life-changing injuries in these incidents. Even where no physical injury occurs, dog aggression can cause significant psychological distress.

At the same time, too many harmless dogs are being destroyed every year because they are banned and cannot be re-homed, even if they are well tempered and pose no risk to the public.

The Government has maintained that the breed ban is essential to public safety, arguing that these prohibited dogs pose an inherent risk. This inquiry found insufficient evidence to substantiate this claim.

The Committee agrees with the Government that it would be irresponsible to amend the breed ban immediately without adequate safeguards, but ‘that does not mean that the Government should continue to sit on its hands.’

The report argues that changing the law on Breed Specific Legislation is desirable, achievable, and would better protect the public, and that '...the Government’s lack of action on this front shows a disregard for dog welfare.'

What action needs to be taken?

The report makes the following recommendations:

• immediately remove the prohibition on transferring a banned dog if it has been behaviourally assessed by experts and found to be safe. This would prevent the needless destruction of friendly animals that could be safely re-homed;
• commission an independent evidence review to establish whether the banned breeds/types present an inherently greater risk than any legal breed or cross breed;
• commission a comprehensive review of existing dog control legislation and policy, with a view to developing an alternative model that focuses on prevention though education, early intervention, and consistently robust sanctions for offenders;
• ensure all future strategies are developed with a full and transparent commitment to evidence-based policy-making. If the independent evidence review concludes there is insufficient evidence to support the Government’s position on Breed Specific Legislation, this aspect of the law should be revised;
• introduce mandatory training and education courses for minor dog offences, similar to speed awareness courses for drivers;
• support wider dog awareness training for schoolchildren, and run a targeted awareness campaign for dog owners and the general public on safe human-dog interaction;
• increase support for local authorities and police forces to ensure they have the capacity to fulfil their duties; and
• engage with international partners to learn lessons and best practice from abroad.

Will anything change as a result of this report?

It remains to be seen how if at all, the government will respond to this latest report.

Sentencing for dangerous dogs’ offences already results in severe sentences, but the focus here is more on trying to ensure that harm is not caused in the first place.

How we can assist?

Dog owners are often unfairly stigmatised and face severe punishment if found guilty of dangerous dog offences.

The legislation is extremely complex, but our solicitors have an in-depth knowledge of this area of law.

If you face investigation or prosecution it is important that you seek early advice. Please contact Michael Strain on 01758 455 500


information10.10.18 Can I get a reduced sentence by helping the police?

You may have heard about ‘texts’ or a ‘Brown envelope to the Judge’, some of the names for the old system.

If you helped the police a ‘text’ may be handed to the sentencing judge explaining that you had assisted and a reduction in sentence may have followed. It was a murky world, clouded in some secrecy and that few people properly understood.

Formal system

A formal statutory system has now been put in place to regulate reduction in sentence for a defendant who aids the authorities, although the ‘text’ regime is still around.

The aim of the new regime is to govern assistance provided and the benefits that might flow as a result.

The old principles (the text) remain in use as it has always been the case that anyone convicted of a crime will receive credit against sentence for assistance rendered to the police or authorities.

Requirements under the new regime

The key features of the statutory scheme are:

• The offender must admit the full extent of his own criminality before the statutory framework can begin to apply, and he must agree to participate in a formalised process which has its own immediate purposes intended to avoid some of the problems which the earlier processes could create.
• Provided the offender admits the full extent of his criminality the process is not confined to offenders who provide assistance in relation to crimes in which they participated, or were accessories, or with which they are linked.
• This is largely a new process in which a post-sentence review of the sentence passed in the Crown Court can be reviewed in a judicial process on a reference back to the court by the prosecutor. That does not prevent there being such an analysis during a Crown Court sentencing decision.
• The decision whether a reduction in sentence should follow a post-sentence agreement is vested in the judge sitting in the Crown Court. The court is able to take into account the specific post-sentence situation. That is quite different from the former practice.
• If in the end the offender fails to comply with his agreement, that does not itself constitute a crime but he is liable to be brought back to the court and deprived of the reduction of sentence which has been allowed or would have been allowed if he had complied with the agreement in full.

New versus old

Following the new regime, rather than the old text regime, may result in a greater discount in sentence. There is no guarantee, however, that providing information will result in a reduction in sentence, it would very much depend on the nature of the information, how it can be used, and whether action can be taken by the police as a result (particularly action that might result in others being prosecuted).

It is important to note that as the formal regime requires full admissions of any criminality on your part that this may result in further charges being brought against you or further offences to be taken into consideration on sentence. There is a careful decision to be made here.

How will I know if it has been taken into account?

The law says that if you are given a reduction in your sentence you have to be told that you have been given a lesser sentence and you must also be told what the greater sentence would have been. You will then know exactly how much of a reduction you were given.

How we can help?

The decision is not an easy one, nor is the process, because of the potential consequences, which may include having to attend court as a witness, or receiving a longer initial sentence. It is vital, therefore, that you obtain expert advice before speaking to the police. If this is something that you wish to discuss, please contact Bethan Williams on office@strainandco.co.uk or 01758 455 500


money04.10.18 Companies and Bribery

Section 7 of the Bribery Act 2010 makes it an offence for a company to bribe another with the intent of obtaining or retaining business or to gain an advantage in business.

The first conviction after trial for an offence under this section was that of Skansen Interiors Ltd who were convicted of failing to have adequate provisions in place to prevent bribery.

Two directors received prison sentences for offences under the Bribery Act 2010, and the company faced this offence under section 7.

What did they do?

The allegation was that the company paid a large fee to obtain confidential information to give them an advantage when tendering for an office refurbishment project.

A new CEO launched an internal investigation when he became aware of the arrangement and he implemented a new anti-bribery policy.

Despite that policy being put in place one of the directors still tried to make the final payment on the arrangement. As a result, the company self-reported to the police and National Crime Agency.

What about the directors?

The two directors were charged with offences under sections 1 and 2 of the Bribery Act, one was sentenced to 12 months’ imprisonment, the other to 20 months’ imprisonment, both were disqualified as being directors, for 6 and 7 years respectively.

Was there an alternative to prosecution?

By self-reporting the company could have been offered an agreement to pay a fine so that they would not be prosecuted if they complied (a Deferred Prosecution Agreement).

In this case the company was, by then, dormant so they could not have paid. Although the prosecution was queried by a Judge, the decision to continue with the prosecution was made to send a message to small companies that bribery needs to be taken seriously, and to make sure that procedures and policies were put in place by them.

What was their defence?

The offence under section 7 relates to a company failing to prevent bribery, the company relied on the defence that they had “adequate provision” in place but were convicted after trial.

Is there guidance anywhere for my business?

Guidance is available from the Ministry of Justice regarding the types of bribery prevention procedures that companies should have in place – click here

How can we help?

If you face an investigation or proceedings involving the Bribery Act or any criminal offence as a company, director or employee please contact Carys Parry on 01758 455 500 or office@strainandco.co.uk for advice.


Abuse02.10.18 Contempt of Court

The case of Tommy Robinson, or to give him his real name, Stephen Yaxley-Lennon, has brought this issue into the public eye, but what is it all about?

What is contempt of court?

The interesting thing about contempt of court is the many ways in which it can be committed. It can be civil or criminal in nature. This means that conduct that is not itself a criminal offence but is punishable by the court. Criminal contempt goes beyond simple non-compliance.

Give me some examples

In Yaxley-Lennon’s case, it was his reporting and commenting on a trial which was in progress with the potential to prejudice those proceedings. He had previously committed the same contempt by attempting to film defendants within the precincts of a court last year.

In a case in Sheffield, contempt of court was committed by protestors who had given an undertaking not to go within a safety zone erected around trees that were to be controversially felled.

In the civil court a freezing order was made against Andrew Camilleri, he breached that order on a number of occasions which led the claimant to make an application to the court for committal for contempt of court. A further case involving breaches of freezing orders made in the civil court was that of Davies, involving persistent, deliberate breaches.

A witness who refused to give evidence after ignoring a witness summons and being brought to court found himself on the wrong side of contempt of court proceedings.

A defendant who had an outburst in court during his sentence hearing, then refused to apologise, followed by another outburst, was dealt with for two contempt of court offences, in addition to the offence for which he was already being sentenced.

A lady took photographs inside a court building, of a defendant and friends making ‘gestures of defiance and contempt’ inside the court precincts with the court notice board behind them. The defendant was also found to be in contempt for inciting the taking of the photograph.

So, tread carefully, it is easy to find yourself in the dock.

What can I get?

Up to two years imprisonment at the crown court or one month at the magistrates’ court (although it can be up to 2 months in relation to some civil orders.

Yaxley-Lennon received ten months imprisonment for his latest offence to be served consecutively to three months imprisonment for the offence last year as he had been on a suspended sentence for that, this is currently subject to appeal.

Two of the tree protestors received suspended prison sentences of two months.

Camilleri was fined £100,000 whilst Davies was given a sentence of 12 months immediate imprisonment.

The witness who refused to give evidence was given 12 months imprisonment, reduced to three months on appeal.

The defendant with his repeated outburst was given three- and six-months imprisonment consecutive to each other, and also to the 20 months for the original offences.

The photograph taking offender was given 21 days imprisonment, the defendant who incited the taking of it was given 28 days.

How can we help?

It can be seen that there are some contempts that the general public may not even realise could land them in trouble with the courts. We are experts in this area and can advise and represent you. Please contact Michael Strain on 01758 455 500 or office@strainandco.co.uk if you would like to discuss any aspect of your case.


Abuse27.09.18 Private Probation Providers Fail Offenders and Society

A few years ago, the National Probation Service was split into two. The existing service maintained its supervision of high-risk offenders, mainly those serving lengthy sentences or with complex rehabilitation needs, the remaining offenders, by far the vast majority, are supervised by companies which bid to carry out rehabilitation work, with payment mechanisms often linked to success.

These arrangements have been subject to intense scrutiny in recent months, and the findings are grim, to say the least.

This is of concern because many offenders commit crime due to underlying circumstances, which if not resolved will inevitably lead to subsequent offending. For example, drug, alcohol and mental health treatment programmes must work if the cycle of offending is to be broken.

A report this week looked at another group of offenders, those who commit offences of domestic violence or abuse.

Domestic abuse is any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been, intimate partners or family members, regardless of gender or sexuality.

The abuse can encompass psychological, physical, sexual, financial and/or emotional harm.

Domestic abuse is the context within which an offence takes place rather than an offence.

There is no single offence of domestic abuse. Rather, a range of offences feature the behaviours exhibited as part of the pattern of domestic abuse. These include:

• physical violence
• psychological or emotional harm
• sexual violence
• ‘honour-based’ violence (for example forced marriage)6
• harassment
• stalking
• gang violence
• sharing or distributing intimate private videos or photographs of another
person without their permission (so-called ‘revenge porn’)
• coercive and controlling behaviour.

An estimated two million people experienced domestic abuse last year.

A good proportion of people in receipt of probation services are domestic abusers, and domestic abuse constitutes a sizeable proportion of the work of Community Rehabilitation Companies.

This group has been shown to have some of the most complex needs in terms of rehabilitation, rehabilitation that is vital to protect the public and set the offender on a path that allows them to move beyond their troubled past.

Regrettably, yet another report makes grim reading, these are some of its findings:

“Overall, practitioners were not empowered to deliver a good-quality domestic abuse service. They had unmanageable workloads and many needed more training and oversight. Inexperienced probation workers had full and complex caseloads and, because of the emphasis on remote working in some CRCs, they were unable to obtain support from their colleagues. The lack of knowledge, skill and time dedicated to managing domestic abuse led to considerable shortfalls in the quality of case management.

Many assessments were superficial. The tools that staff were using to complete assessments did not always help them to analyse and assess their cases thoroughly.

This left them without the necessary understanding of the context of the domestic abuse and the factors linked to the behaviours in the case. Some plans were helpful and included appropriately sequenced, individualised objectives, but this was not common practice.

Some of the CRCs’ work to protect victims (and especially children) was of grave concern. There was little correlation between the vision CRCs had for victims and the quality of practice.

Many probation workers did not fully understand the effect of domestic abuse on families or the relevance of an integrated approach to managing risk of harm. As such, they focused their work solely on the individual. Assessments and plans lacked depth: the voice and needs of victims, and information from partner agencies, were not analysed sufficiently and used to inform work to reduce risk of harm. Probation workers relied too much on the decisions of other agencies, such as children’s social care and the NPS, about levels of risk of harm and safeguarding, without checking their validity. As such, they were not always able to make effective decisions about how to protect victims and children. They often failed to see the monitoring of external controls, such as restraining orders, or undertaking home visits, as an integral part of their work.”

Why does this matter?

We see many clients who bitterly regret their offending behaviour and seek help in addressing the underlying causes. A society that does not assist offenders to rehabilitate bears a heavy cost, both financial and worse. All policymakers must address the concerns in recent reports as a matter of urgency.

Please contact Michael Strain on 01758 455 500 or michael@strainandco.co.uk for assistance with any law related enquiry.


Respect25.09.18 Is being sexist or misogynist a crime?

Is there a specific offence?

The answer is sometimes, but not always.

Two years ago, Nottinghamshire Police decided to label misogyny and offences targeting women as hate crime or hate incidents. Two local universities recently undertook a report entitled “The Misogyny Hate Crime Evaluation” report which recommends rolling out the policy nationally.

Misogyny hate crime is defined as “incidents against women that are motivated by the attitude of men towards women and includes behaviour targeted at women by men simply because they are women.”

This definition can include behaviour that is not criminal; these are recorded as hate incidents rather than hate crime, so something such as wolf-whistling may be recorded as a hate incident.

The policy does not criminalise that behaviour, but it may result in a discussion, for example, with building site managers if their workers are behaving that way.

In Belgium, however, such behaviour can be criminal. A man has been convicted under a new law which does criminalise sexism. He was stopped driving a car for breaking the highway code and told the female police officer to do a job “adapted to women”. He was fined €3,000 for insulting the officer because of her gender.

The offence in Belgium is expressing contempt toward a person because of their sexuality or treating them as inferior due to their sexuality; if it entails a serious attack on their dignity, it is punishable by up to 12 months in prison.

In France, they are preparing to create an offence of street harassment that is “sexist and sexual outrage”. Meanwhile, in Stockholm sexist advertising has been banned while the London Mayor, Sadiq Khan, has attempted to ban body shaming adverts.

UK chief constables met in July and to discuss the issue and whether the policy in Nottinghamshire would be rolled out. MPs are also to vote on whether misogyny should be made a hate crime. The developments in the UK and other countries demonstrates how the law is continually evolving. It may be that this will be an aggravating feature of an offence when sentencing or disposal is dealt with.

How can we help?

You can be assured that we stay up to date as the law changes and will be able to provide you with expert, tailored advice. If you have been accused of any crime we can assist you, if you would like advice on any aspect of your case please contact Michael Strain on 01758 455 500 or michael@strainandco.co.uk.


Brigade20.09.18 Do I have to give the police my phone PIN?

Is there a specific offence?

The simple answer is no, but there are potential consequences in certain circumstances.

When can they ask?

It is arguable that the police could ask you whenever they wanted for your PIN, you can always say no. The critical issue is whether they can take further action if you say no.

When can they take further action?

Section 49 of the Regulation of Investigatory Powers Act 2000 contains the relevant power.

If your phone has been seized, or in circumstances where they have the power to inspect it, the police can give you notice that they require you to provide the PIN or “encryption key” to allow them access. The same applies to other devices such as computers.

Written permission must be obtained from a Judge or a District Judge for the giving of a notice under section 49, this then provides “appropriate permission”.

The person with “appropriate permission” requesting the information must believe, on reasonable grounds:

(1) that the key or PIN is in your possession;
(2) that the notice is necessary for the grounds listed below, or it is necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or duty
(3) the notice is proportionate; and
(4) that it is not reasonably practicable for the person to obtain possession of the protected information without the giving of a notice.

A notice is necessary (as in (2) above) if it is necessary:

(1) in the interests of national security;
(2) for the purpose of preventing or detecting crime or
(3) it is in the interests of the economic well-being of the UK.

What would “notice” be?

A notice has to be in writing (or otherwise recorded), set out the protected information to which it relates, set out the grounds for requiring it (as above), specify the office, rank or position of the person giving it, specify the office, rank or position of the person granting permission for it to be given, specify the time by which the notice is to be complied with, and finally, what disclosure is required and how it is to be provided.

What is concerning is that people are very often given documents that leave the impression that giving the passcode is compulsory, when in fact they are mere requests not authorised by any higher body – you should always seek the advice of a solicitor before complying with any request.

What if I do not know the PIN or still don’t want to give it?

If you do not comply with a properly given notice, you can be prosecuted. If you know the information required and refuse to provide it, you can be sentenced to a maximum of 2 years imprisonment or 5 years imprisonment for an offence involving national security or child indecency.

If you genuinely do not know the information you can put this forward as a defence to the offence.

The legislation says that a person will be taken as not being in possession of a key (or PIN) if “sufficient evidence of that fact is adduced to raise an issue with respect to it and the contrary is not proved beyond a reasonable doubt”.

What sentences have been given?

Andrew Garner failed to comply with a notice, he said that he had forgotten the PIN but was found guilty and given eighteen months imprisonment. Tajan Spaulding pleaded guilty after refusing to provide the PIN for his iPhones and was given eight months imprisonment. Stephen Nicholson was given 14 months imprisonment for failing to provide his Facebook password to the police during the investigation into the murder of Lucy McHugh.

How can we help?

People have been to prison for not providing the PIN for their phone; the consequences can be severe, but this article is only a simple overview of the power. We can advise you whether the notice is lawfully made, if it is made in appropriate circumstances and whether you have a defence to put forward.

Obtaining advice at an early stage is crucial. If you would like to discuss any aspect of your case, please contact Carys Parry on 01758 455 500 or office@strainandco.co.uk.


Brigade18.09.18 Assaults on Emergency Workers

Is there a specific offence?

Until now the only specific offence has been that of assaulting a police officer. This is a summary only offence which carries a maximum of 6 months imprisonment.

There has always been an option to charge an offender with more serious offences, such as actual or grievous bodily harm, if the injury to the officer is more serious, and this will remain the case.

However, most lower level assaults against emergency workers have had to be charged as common assault – an offence carrying a maximum of 6 months imprisonment.

What is changing?

A new law has been passed which will create a new category of common assault - assaulting an emergency worker in the exercise of their functions.

If your neighbour was a police officer and you got into a dispute and assaulted them, the new provisions would not be triggered as they would not at that time be acting as a police officer (‘in the exercise of their functions’), but if you assaulted a police officer while being arrested, the provisions would be triggered.

The Assault on Emergency Workers (Offences) Act 2018 will come into force in November 2018.

Who will this cover?

“emergency worker” means—

(a) a constable;
(b) a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;
(c) a National Crime Agency officer;
(d) a prison officer;
(e) a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;
(f) a prisoner custody officer, so far as relating to the exercise of escort functions;
(g) a custody officer, so far as relating to the exercise of escort functions;
(h) a person employed for the purposes of providing, or engaged to provide, fire services or fire and rescue services;
(i) a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);
(j) a person employed for the purposes of providing, or engaged to provide—
(i) NHS health services, or
(ii) services in the support of the provision of NHS health services, and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public.

It is immaterial whether the employment or engagement is paid or unpaid.

What is the penalty?

The maximum penalty will increase from 6 to 12 months’ imprisonment.

Is there any further effect?

The legislation will also create a statutory aggravating factor. This means that if a different offence is charged (such as actual bodily harm, for example) where the victim is an emergency worker, it will be seen as an aggravating factor which merits an increase in the sentence to be imposed.

Within the current sentencing guidelines, it is already an aggravating factor to assault a person serving the public, but the legislation will put the position on a statutory basis.

Why is this happening?

There has been an increase in assaults on emergency workers in recent years. Government statistics reportedly show 26,000 assaults on police officers in the last year and 17,000 on NHS staff. There has been an increase of 18% in assaults on firefighters in the previous 2 years and a 70% increase on assault on prison officers in the last 3 years up to 2017.

As a result of these increases, new legislation was proposed, and this will be the first time there is a specific offence extending protection to those carrying out the work of an emergency service. Whether this sentence increase will deter assaults remains to be seen, with most commentators being sceptical at best.

How can we help?

We are always up to date with the most recent changes in legislation, and we can advise you from the police station through to court. Early advice is essential, if you would like to discuss any aspect of your case please contact Michael Strain on 01758 455 500 or michael@strainandco.co.uk.


court room12.09.18 What to expect as a witness

If you have provided a statement for the prosecution or for the defence you may be called to court to give evidence at the defendant’s trial.

Is there help available for me?

The Witness Service provide assistance for any witness who has to attend court. This support can be both practical and emotional.

They can provide information about the court process, show you the courtroom prior to the trial and assist with any expenses claim.

If you are a prosecution witness the Crown Prosecution Service witness support unit will be in touch with you and will provide contact details for witness support. If you are a defence witness the solicitor representing the defendant can provide you with support and also provide the contact details for the local witness service.

What happens at court?

When you attend court, you can sit in a separate witness room rather than the general waiting area if you wish. You will be spoken to by the prosecution or defence lawyer, as appropriate, before the trial starts.

Will I be told what to say?

Whilst the lawyer will be able to provide you with information on trial procedure, layout of the court and the roles of those involved they cannot “coach” you on your evidence. There are very strict rules about training witnesses because this could have a potentially negative effect on the proceedings.

Can I read my statement?

You will be provided with a copy of your statement prior to the trial so that you can read through it before you give evidence. In some cases you may be allowed to refresh your memory from the statement when giving evidence – if you are struggling the advocate will see this and take any necessary steps to ensure you are able to give the evidence you wish to give.

Can I speak to the other witnesses?

If there are a number of witnesses, you will not be allowed to communicate with anyone who has given evidence while you are still waiting to do so. If you are a defence witness, you should also not discuss anything about the trial with the defendant once the trial hearing has started. The prosecution or defence lawyer are not allowed to discuss any evidence that has been given with you before you give your evidence.

What happens in court?

You will be called into court at the appropriate time and asked to swear on a holy book or affirm that you will tell the truth. You will then be asked questions by the prosecutor first if you are a prosecution witness and then by the defendant’s representative, or vice versa if you are a defence witness.

If the defendant is not represented, you may be asked questions by a court appointed lawyer in his place if the court do not feel it is appropriate for him to ask you questions directly.

Once you have finished giving evidence you may be released from court or you can stay in the public gallery to watch the remainder of the trial.

I’m really worried, do I have to go?

If you think that you would benefit from “special measures” such as screening from the defendant or giving evidence from remote video link you should contact the prosecution, defence solicitor or court as appropriate. A witness summons can be issued if the court is aware you do not want to go, this is something that you should speak to a solicitor about.

How can we help?

If you would like to discuss a witness summons or if you have provided our office with a statement in respect of one of our clients, or are considering doing so and want to discuss this further please contact Michael Strain on 01758 455 500 or office@strainandco.co.uk


eyesight04.09.18 What power do the police have to test my eyesight?

There has been much ado in the press about police forces undertaking random checks on motorists and revoking licences at the roadside. So, what are their powers?

Can the police stop me?

Under section 163 of the Road Traffic Act 1988 a police officer in uniform has the power to require a driver of a vehicle on a road to stop. It is an offence to fail to comply with such a request.

Does the officer have to be in uniform?

To use this power the officer has to be in uniform. There is a common law power, however, for an officer not in uniform to request a vehicle to stop although there would be no penalty for failing to comply.

What is the law about vision and driving?

You must be able to read a registration plate from 20 metres (approximately five car lengths). It is an offence to drive with uncorrected defective eyesight.

Can the police ask me to do a roadside eye test?

You could be asked to undertake the test voluntarily. Otherwise, there must be a suspicion that you may be guilty of driving when you cannot comply with the vision test requirement. If the officer does suspect, you can be required to submit to a test.

Section 96 of the Road Traffic Act 1988 provides this power. The test can be carried out between 8am and 9pm, only in daylight.

What if I refuse to do the test?

If the officer has a reasonable suspicion that you have been driving while your eyesight is such that you could not pass the test and you refuse to do so, you are committing an offence.

What could happen?

Failing to stop for a police officer, under section 163, can be punished by a fine.

Driving with uncorrected defective eyesight or refusing to submit to a test of vision carries a fine, discretionary disqualification and an obligatory endorsement of three penalty points.

What about my licence, can it be revoked?

If you fail a vision test at the roadside, or fail to comply, the police can immediately report this fact to the DVLA.

There is a fast track system whereby a decision to revoke your licence can quickly be made, such a decision taking place within hours. Once your licence is revoked, it will be not be returned until you can demonstrate that your eyesight meets the required standard.

Your licence being revoked will not prevent a prosecution for the offences outlined above.

Why is this in the news?

The power for fast-track revocation has existed since 2013. The power is now being widely reported as three police forces have announced their intention to undertake such checks at the roadside, this may be extended nationwide.

Based on a study by the Association of Optometrists it is estimated that some 1 million people in the UK are driving illegally. RSA Insurance estimates that eyesight problems cause nearly 3000 casualties per year on the UK roads.

The police forces involved in the initiative have said that they will be gathering data as to the extent of any issues. Potentially, this could lead to a further mandatory vision test at some stage after the practical driving test.

What can we do to help?

We are experts in road traffic law and can advise you if you are facing investigation or prosecution. To discuss any aspect of your case, please call Nicola Jones on 01758 455 500 or office@strainandco.co.uk.


24.08.18 Acquittals and enhanced record checkswhats your story

If I’m acquitted will the alleged offence show on a DBS check?

An ordinary DBS (Disclosure and Barring Service) check reveals convictions and cautions. An enhanced check, required for many jobs, may reveal information held by the police such as intelligence, arrests, prosecutions and acquittals.

Surely an acquittal shouldn’t be on the check?

This was challenged in Court by “AR”, he was a qualified teacher who had been working as a taxi driver when he was accused of rape. His defence was that there had never been any sexual contact with the complainant, although she had been in his taxi. He was acquitted. When he applied for a job as a lecturer the enhanced check revealed the acquittal and the details of the allegation.

What did the Court say?

The Court said that in certain circumstances such information could be included on enhanced checks and in “AR’s” case it was correct to do so.

Why?

The court said “in principle, even acquittal by a criminal court following a full trial can be said to imply no more than the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”

Who makes the decision?

In the first instance, the police decide whether the information should be included on an enhanced check (although in practice many matters are ‘filtered’ and removed automatically from consideration). They can disclose non-conviction information that may identify a potential risk to the vulnerable; the test is based on relevance, truth/substantiation and proportionality. It is not automatic, therefore, that an acquittal would be disclosed, as the circumstances of the acquittal need to be considered and consideration given as to whether the offender may have committed the alleged offence. It is vital that if there is any positive evidence that the offender did not commit the offence, for example because the complainant admitted lying, that this is brought to the attention of the police.

How can we help?

A decision to include information on an enhanced check can be objected to and representations made to the police and if unsuccessful, can also then be appealed to the Information Governance Unit. We can assist you in formulating these representations. The solicitor who represented “AR” is also considering an appeal against this decision so that the situation may change. We always stay up to date with any changes in legislation or case-law so that we are I the best position to advise you. If you would like to discuss any aspect of your case, please contact Michael Strain at office@strainandco.co.uk or 01758 455 500


20.08.18 What to expect as a witnessWitness

If you have provided a statement for the prosecution or for the defence you may be called to court to give evidence at the defendant’s trial.

Is there help available for me?

The Witness Service can provide assistance for any witness who has to attend court. This support can be both practical and emotional. They can provide information about the court process, show you the courtroom prior to the trial and assist with any expenses claim. If you are a prosecution witness the Crown Prosecution Service witness support unit will be in touch with you and will provide contact details for witness support. If you are a defence witness the solicitor representing the defendant can provide you with support and also provide the contact details for the local witness service.

What happens at court?

When you attend court, you can sit in a separate witness room rather than the general waiting area if you wish. You will be spoken to by the prosecution or defence lawyer, as appropriate, before the trial starts.

Will I be told what to say?

Whilst the lawyer will be able to provide you with information on trial procedure, layout of the court and the roles of those involved they cannot “coach” you on your evidence. There are very strict rules about training witnesses because this could have a potentially negative effect on your evidence.

Can I read my statement?

You will be provided with a copy of your statement prior to the trial so that you can read through it before you give evidence. You will not usually be allowed to have it with you when you give evidence though. If the rules of evidence allow, you may be able to refer to your statement during evidence in order to refresh your memory.

Can I speak to any other witnesses?

If there are a number of witnesses, you will not be allowed to communicate with anyone who has given evidence while you are still waiting to do so.

If you are a defence witness, you should also not discuss anything about the trial with the defendant once the trial hearing has started.

The prosecution and defence lawyers are not allowed to discuss any evidence that has been given with you before you give your evidence.

What happens in court?

You will be called into court at the appropriate time and asked to swear on a holy book or affirm that you will tell the truth. You will then be asked questions by the prosecutor first if you are a prosecution witness and then by the defendant’s representative, or vice versa if you are a defence witness. If the defendant is not represented, you may be asked questions by a court appointed lawyer in his place if the court do not feel it is appropriate for him to ask you questions directly. Once you have finished giving evidence you may be released from court or you can stay in the public gallery to watch the remainder of the trial.

I’m really worried, do I have to attend court?

If you think that you would benefit from “special measures” such as screening from the defendant or giving evidence from remote video link you should contact the prosecution, defence solicitor or court as appropriate. A witness summons can be issued if the court is aware you do not want to go, this is something that you should speak to a solicitor about. If you fail to attend court in answer to a witness summons, then you may be arrested and brought to court.

How can we help?

If you would like to discuss a witness summons or if you have provided our office with a statement in respect of one of our clients, or are considering doing so and want to discuss this further please contact Carys Parry on 01758 455 500 or office@strainandco.co.uk


07.08.18 Criminal damage

criminal damageEssentially, the crime is made out if you intentionally or recklessly damage property. Most commonly it is damage to cars and windows, very often as an act of revenge.

The damage does not need to be permanent. There have been cases where graffiti, water-soluble paints on a pavement and squashing a policeman’s helmet have all been held to be damage, as has flooding a police cell.

If action, expense or inconvenience is involved in putting the matter right then damage will have been caused, as would be the case if you created ‘crop circles’ in a wheat field. The court will consider all of the circumstances, whether something is damaged is a matter of fact or degree to be decided by the court.

What if it is my property?

You cannot unlawfully damage your own property, but it can still be an offence to damage jointly owned property. So, a person who smashes up a family home in a fit of rage would very often be guilty of the offence.

What if it was an accident?

There is sometimes a fine line between accident and recklessness. To prove recklessness, the court should be sure that you were aware of a risk that property would be damaged, and, in the circumstances, it was unreasonable for you to take that risk. The offence can be committed by being reckless or intending to cause the damage. Intent is simply that you committed the damage on purpose (although in legal terms it is slightly more complex than this).

Is there a defence?

Whether the offence is committed depends on damage being caused without “lawful excuse”. You would have lawful excuse if you believed you had consent to cause the damage or would have had consent or that you were protecting your own property or that belonging to someone else. Your actions would have to be reasonable in all the circumstances. It is your belief that is important so if it is honestly held it may not matter if the belief is not justified. Causing damage simply because you are drunk will afford neither a defence nor mitigation.

Where will I be dealt with?

This offence will be dealt with in the magistrates’ court where the value involved does not exceed £5,000. When there is more than one offence of damage the total of the damages will be used to calculate whether the offence is £5,000 or less. The court determines the value of the damage in deciding whether they are to deal with the case. Where damage is caused by fire (arson) different considerations apply.

Is there a time limit on prosecution?

Even though certain offences can only be dealt with in the magistrates’ court the six-month time period for prosecution does not apply.

What sentence will I get?

Minor damage such as breaking a small window is likely to result in a conditional discharge or fine. Significant damage up to £5,000 caused as part of a spree can lead to a community order or custody of up to three months. The higher the value, the more likely imprisonment will be imposed, the maximum sentence at the crown court is ten years. In appropriate cases we will work hard to have your case diverted away from the criminal justice system, an early apology and offer of compensation can sometimes be enough to avoid a criminal case.

How can we help?

If you would like to speak to someone about your case, please contact Michael Strain an 01758 455 500 or office@strainandco.co.uk


31.07.18 Manslaughter - New Sentencing Guideline

Death PenaltyThe Sentencing Council, responsible for setting sentencing guidelines in England and Wales, has today issued a new guideline in relation to manslaughter offences.

Which offences are covered?

The guideline covers:

• Unlawful act manslaughter – a common law offence
• Gross negligence manslaughter - a common law offence
• Manslaughter by reason of loss of control – a statutory partial defence to murder (sections 54 and 55 of the Coroners and Justice Act 2009)
• Manslaughter by reason of diminished responsibility – a statutory partial defence to murder (section 2 of the Homicide Act 1957)

The offence of corporate manslaughter is covered by the Council’s health and safety sentencing guidelines.

When does the guideline take effect?

The guideline applies to all offenders sentenced on or after 1 November 2018; this means that if you are charged before the guideline comes in to force, you may still fall to be sentenced in accordance with it if you plead guilty or are convicted.

What are the different types of manslaughter?

Unlawful Act manslaughter - This is the most commonly prosecuted form of manslaughter and includes deaths that result from assaults where there was no intention to kill or cause very serious harm. It can vary greatly. For example, it could involve a situation where two friends briefly argue and one pushes the other causing him to fall and hit his head with fatal results. It could involve someone going out looking for a fight and attacking someone forcefully but not intending to kill. It could also include unintended deaths that result from other crimes, such as arson or robbery. 105 offenders were sentenced for this offence in 2016.

Gross negligence manslaughter - This occurs when the offender is in breach of a duty of care towards the victim which causes the death of the victim and amounts to a criminal act or omission. The circumstances vary greatly. In a domestic setting it could include parents or carers who fail to protect a child from an obvious danger. In a work setting, it could cover employers who completely disregard the safety of employees. 10 offenders were sentenced for this offence in 2016.

Manslaughter by reason of loss of control - This arises if the actions of an offender, who would otherwise be guilty of murder, resulted from a loss of self control, for example arising from a fear of serious violence. 12 offenders were sentenced for this offence in 2016.

Manslaughter by reason of diminished responsibility - Someone guilty of this offence would have been suffering from a recognised mental condition that affected their responsibility at the time of the offence, without which they would have been convicted of murder. 26 offenders were sentenced for this offence in 2016.

Why has this guideline been issued?

The guideline ensures comprehensive guidance where previously it was very limited. Until now, there has been a guideline only for corporate manslaughter, which comes under the Council’s health and safety offences guideline, and a guideline by the Council’s predecessor body for manslaughter by reason of provocation, which is now out of date following legislative changes to the partial defences to murder.

Will sentence length increase?

The Sentencing Council predicts only a minimal impact, around ten extra prison places per year as a result of the guideline but cautions that 'it is difficult to ascertain how sentence levels may change under the new guideline.'

Experience tells us that there is a certain degree of sentence length creep' following the implementation of new guidelines. Our advocates are trained in the use of all sentencing guidelines and equipped to ensure that judges apply them correctly.

How can we assist?

If you need advice concerning any criminal law matter, contact Carys Parry on 01758 455 500 or office@strainandco.co.uk


26.07.18 The Death Penalty and Extradition

Death PenaltyIn the UK we have not had the death penalty for over 50 years. The last hanging in England took place in 1964 when Peter Allen and Gwynne Evans were hanged for the murder of John West, 15 months before the death penalty was abolished.

Since then there has been a long-held opposition to the death penalty which has been applied in extradition cases.

What is extradition

Extradition means legal proceedings for the return of a person in the UK to another country to face criminal proceedings (or proceedings abroad to return a person to the UK).

How is the death penalty relevant?

When the requesting country has the death penalty available, and it could apply to the criminal proceedings in question the UK would usually seek an assurance that the person will not face the death penalty if extradited. If an assurance is not given, then UK law would prohibit the removal from the UK of that person. The death penalty is forbidden under the European Convention of Human Rights.

Why is it in the news now?

Alexander Kotey and El Shafee Elsheikh are alleged to have been involved in the torture and beheading of more than 27 victims as members of a cell of Isis executioners in Syria and Iraq. They are not subject to extradition as they were not arrested in the UK. They have been stripped of their British citizenship, and discussions have been taking place as to whether they should be returned to the UK for trial or taken to the USA. Victims have been both UK and US citizens.

In an unusual move Sajid Javid, the UK Home Secretary, has told the USA that he would not seek an assurance over the use of the death penalty and agrees to the US request for mutual legal assistance.

What is mutual legal assistance?

MLA is a method of co-operation between states for assistance in investigating or prosecuting criminal offences. The guidelines for MLA are similar to the law in extradition outlined above, in saying that if the death penalty is a possible sentence, an assurance will be sought that such a sentence will not be carried out, in the event of a conviction.

What are the implications?

Commentators are questioning whether this is a relaxation of the policy of opposition to the death penalty in the UK. Javid apparently stated in his letter that this does not alter the stance of the UK, but it certainly raises questions as to whether assurances would not be sought in the future and in what circumstances.

The Howard League for Penal Reform has already indicated that it may bring legal proceedings to challenge the decision of the Home Secretary.

How can we help?

Although you cannot receive the death penalty in the UK, you can face very lengthy prison sentences and severe restrictions on your liberty if convicted. If you would like to discuss any aspect of your case, please contact Michael Strain on office@strainandco.co.uk or 01758 455 500


Translation coming soon...

24.07.18 Iechyd a Diogelwch wedi mynd o’i gof!

Iechyd a Diogelwch Ond a yw hyn yn wir o ddifrif?
Yr Awdurdod Iechyd a Diogelwch sydd yn rheoli , yn genedlaethol, iechyd a diogelwch yn y gweithle. Yn ddiddorol, ar eu gwefan mae tudalen yn chwalu’r chwedlau am iechyd a diogelwch, fel yr un yn dweud bod baneri wedi eu gwahardd oddiar geir dinesig am resymau iechyd a diogelwch; neu gwahardd alcohol o ble bynnag cynhelir partion Gwaith adeg y Nadolig.
Felly beth maent yn ei wneud? “Gwaith” y Pwyllgor hwn yw osgoi marwolaethau, anafiadau a salwch achoswyd yn y gweithle.Maent yn canolbwyntio ar y peryglon mwyaf, ac yn targedu diwydiannau gyda’r record waethaf am reoli perygl. Maent yn cynnig arweiniad a chyngor am ddim, yn archwilio safleoedd gwaith ac yn ymchwilio pan aiff pethau o’i lle.
Pa bwerau sydd ganddynt? Mae ganddynt hawl i archwilio safleoedd gwaith ac adeiladau, siarad a phobl berthnasol, sylwi beth sydd yn mynd ymlaen yn y gweithle, edrych os yw dulliau rheoli perygl yn effeithiol a tynnu sylw at unrhyw wendidau. Trwy wneud hyn gallant ystyried cymryd camrau gorfodi ac ymchwilio i unrhyw droseddau posibl.
Beth yw camau gorfodi? Gallant roi cyngor, cyflwyno rhybudd, atal cymeradwyo neu newid trwyddedau, amodau neu delerau eithrio.Mater mwy difrifol yw bod ganddynt hawl i roi rhybuddion neu i erlid. Os torrwch unrhyw reolau gallwch orfod talu am yr amser gymerodd yr Awdurdod Gweithredu Iechyd a Diogelwch i’ch cynorthwyo i gywiro’r modd y torrwyd y gofynion.
Ymchwiliadau. Bydd yr Awdurdod yn ymchwilioiI ddigwyddiadau difrifol, anafiadau neu achosion o salwch yn gysylltiedig a gwaith, i gydfynd a’u criteria o ddewis digwyddiadau, gan nad ydynt yn ymchwilio i bob achos gyfeirir atynt. Gellir dwyn achosion yn erbyn cyrff corfforaethol, ac mewn rhai achosion, yn erbyn unigolion hefyd.
Beth yw’r gosb? Nid oes canllawiau penodol ar gyfer troseddau iechyd a diogelwch, ar wahan i ddyn-laddiad corfforaethol, ond maent yn debygol o orfod dilyn canllawiau cyffredinol ar gyfer troseddau sydd dan drafodaeth ar hyn o bryd.
Achosion diweddar.
Cafodd Air Liquide (UK) Ltd. Ddirwy o £160,000 ar ol pledio’n euog I dorri rheolau Adran 2 (1) o’r Ddeddf iechyd a Diogelwch yn y Gwaith a.y.y.b.1974. Roedd aelodau eu tim ymateb brys wedi eu gwisgo’n addas ar gyfer gwaredu poteli nwy nad oedd eu hangen mwyach, ond gollyngwyd un botel gan dywallt hylif peryglus ar lawr.Dihangodd nwyon ohono i gyfeiriad 2 weithiwr oedd heb wisg i’w gwarchod, gan gael effaith mor ddifrifol ar un, fel iddo syrthio i’r llawr.

Plediodd Bertram Manufacturing Ltd. yn euog i dorri Adran 2 (1) o Ddeddf Iechyd a Diogelwch yn y Gwaith 1974 a chael dirwy o £82,000. Baciodd wagen fforch godi i bentwr o gyplau to,ddisgynnodd ar weithiwr gan achosi torri nifer o esgyrn.

Dirwywyd W.E.Rawson Ltd. i £600,000 am dorri Adran 2 (1) Deddf 1974. Bu farw gweithiwr o anafiadau yn dilyn cael ei wasgu pan geisiodd ryddhau pecyn , oedd wedi mynd yn sownd, o beiriant pacio.Darganfu’r Awdurdod (HSE) nad oedd y cwmni wedi cymryd camau i rwystro mynediad ardal berygl rhwng peiriannau cludo oedd yn symud.
Carcharwyd Simon Thomerson o Clearview Design and Construction Ltd. am 8 mis, yn dilyn marwolaeth dau o’i weithwyr pan yn ymwneud a than ffrwydrol mewn safle gwaith. Plediodd yn euog i dorri Adran 2 (1) Deddf 1974.
Sut gallwn helpu? Er mai’r Awdurdod Iechyd a Diogelwch (HSE) sydd yn ymchwilio i achos yn hytrach na’r heddlu, gall fod er hynny yn ymchwiliad i droseddau all arwain at garchar neu ddirwyon sylweddol iawn i gwmniau. Byddwch angen o’r cychwyn y cyngor arbenigol y gallwn ni ei gynnig. I drafod unrhyw agwedd o’ch achos cysylltwch, os gwelwch yn dda, a Michael Strain ar 01758 455 500 neu office@strainandco.co.uk

 


24.07.18 Cliff Richard, Privacy and the Data Protection Act

Cliff Richard

In July 2014 the BBC filmed a search of Sir Cliff Richard’s property by the South Yorkshire Police. He was not arrested for any offence.

South Yorkshire Police provided the BBC with information that enabled them to be present at the scene. The disclosure given was that he was under investigation and the date, time and place of the intended search. Sir Cliff sued both the police force and the BBC in privacy and under the Data Protection Act 1998.

South Yorkshire Police

The police force admitted liability and agreed to pay him £400,000 in damages.

BBC

The BBC said that the information was volunteered to them by the police and denied any liability. The case as far as the police and Sir Cliff was concerned was that the police were manoeuvred into providing it from a fear and implicit threat that the BBC might or would publish news of the investigation prior to the search taking place.

What did the court decide?

The court rejected the BBC’s case saying that Sir Cliff had privacy rights in respect of the police investigation and that the BBC infringed those rights without legal justification. As Sir Cliff won his case on the privacy case, there was no need to rule on the data protection issue.

What happens now?

Sir Cliff was awarded both special and general damages. The Court did not agree with all sample instances provided for the special damages which will be ruled upon later if an agreement is not reached. General damages were awarded to cover the general effect on him and his life. The damage caused was said to be substantial, and £190,000 was awarded, aggravated damages of £20,00 were added as the BBC nominated its footage for a television award as “Scoop of the Year”.

Who pays what?
The BBC will pay for the aggravated damages, as the BBC was much more responsible than the South Yorkshire Police they will pay 65% of the damages that both parties are liable for, with the police paying the remainder.

What are the wider implications of this judgment?

Commentators are split as to whether this case turns on its own facts, linked as it is to a very high-profile case and person, or whether it impacts more widely and will lead to greater privacy protections for others being investigated. In our view it is too early to tell what the wider impact will be, but many clients will be interested in exploring options for ensuring early-stage police investigation are not leaked to the press. We take the view that where the leaking of an investigations is a risk, an early warning shot to the police may be required.

How can we help?

If you need advice in relation to any criminal law issue, then please contact Bethan Williams on 01758 544 500 or office@strainandco.co.uk


18.07.18 Consent

Blog Post about ConsentIt should be easy enough, shouldn’t it? Yes or no?

As always, life and the law are more complicated than that, and the issue of consent is not so simple.

What is consent?

A person consents if she or he agrees by choice and has the freedom and capacity to make that choice.

Can a drunk person consent?

Yes, drunken consent is still consent, but this is where problems can arise. If a person loses their capacity to choose, through drink, then he or she is not consenting.

Consent is frequently the issue in many rape cases where it is one word against the other.

The Courts have said to focus on these issues:

1. Did sexual intercourse take place?
2. Did the complainant consent to sexual intercourse?
3. Did the complainant have the freedom and capacity to consent?
4. Did the defendant reasonably believe that the complainant was consenting? (this does not apply in all cases).

Who decides?

At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.

How do you prove consent?

In the absence of a written contract, and even then, there could be doubts, it is for the jury to decide having heard the evidence.

In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting, there must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.

The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may be vitiated.

There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.

How can we help?

This article is a brief analysis of potential issues, as you can see this is an area that would require careful assessment and expert advice.

The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other.

It is our job to present the strongest case possible.

You are entitled to free and independent advice at the police station, regardless of your means, and we can provide that advice. Contact Michael Strain on 01758 455 500 or michael@strainandco.co.uk for further information or to discuss your case.


16.07.18 It’s health and safety gone mad!

Health and Safety Blog PostOr is it?

The Health and Safety Executive is the national regulator for workplace health and safety.

Interestingly, on its website, there is a page for debunking health and safety myths, such as the one where flags were banned from civic cars for “health and safety”, or the removal of alcohol from a workplace Christmas party.

So, what do they do?

The HSE “mission” is to prevent work-related death, injury and ill-health. They concentrate on the most serious risks, targeting industries with the greatest hazards and sectors with the worst risk management records. They provide free guidance and advice, inspect premises and investigate when things go wrong.

What powers do they have?

They can inspect premises, speak to relevant people, observe workplace activities, check whether risk controls are effective and identify any breaches. In doing so, they can consider taking enforcement action and investigate any potential offences.

What is enforcement action?

They can provide advice, serve notices, withdraw approval or vary licences, conditions or exemptions. More seriously they can issue cautions or prosecute. If you do breach any regulations you can be made to pay for the time it takes the HSE to help you to put the breach right.

Investigations

The HSE will investigate serious work-related incidents, injuries or cases of ill-health, in line with its incident selection criteria, as they do not investigate everything that is reported to them. Cases can be brought against corporate bodies and in some cases individuals as well.

What sentence could I get?

There aren’t any specific sentencing guidelines for health and safety offences other than corporate manslaughter although they are likely to come under general offence guidelines that are currently being consulted upon.

Recent cases

Air Liquide (UK) Ltd was fined £160,000 after pleading guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974. Members of their emergency response team were appropriately dressed to dispose of redundant gas bottles; however, one was dropped spilling highly hazardous fluid to the floor. Vapour drifted to 2 unprotected workers affecting one so severely he collapsed to the floor.

Bartram Manufacturing Ltd pleaded guilty to breaching section 2 of the Health and Safety at Work etc. Act 1974 and was fined £82,000. A forklift truck reversed into a stack of roof trusses which fell onto an employee causing multiple fractures.

WE Rawson Ltd was fined £600,000 for breaching section 2(1) of the Health and Safety at Work etc. Act 1974. An employee died following crush injuries received when he attempted to free a stuck package from a packaging machine. The HSE found the company failed to take measures to prevent access to the danger zone between the moving conveyers.

Simon Thomerson of Clearview Design and Construction Ltd was jailed for eight months following the death of two labourers employed by him when they were involved in an explosive fire within a work unit. He pleaded guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974.

How can we help?

Even though a case may be investigated by the HSE rather than the police you can still be under investigation for criminal offences that can lead to imprisonment or very substantial fines for companies.

You need expert advice from the outset which we can provide. To discuss any aspect of your case, please contact Michael Strain on 01758 455 500 or Office@strainandco.co.uk


06.07.18 New Sentencing Guideline Issued

Weapons - Government to Get ToughThe Sentencing Council has published new definitive guidelines for intimidatory offences, it will take effect in respect to all cases sentenced on or after 1 October 2018, so may well affect your current case.

Sentencing Council member Judge Rosa Dean said: “Our guidelines recognise and reflect the very intimate, personal and intrusive nature of these offences, which can have devastating, often long-term impacts on victims and their families. They will provide courts with comprehensive guidance that will help ensure sentences reflect the seriousness of these offences.”

What offences are covered?

The guideline covers:

• Harassment (putting people in fear of violence)
• Racially or religiously aggravated harassment (putting people in fear of violence)
• Stalking (involving fear of violence or serious alarm or distress)
• Racially or religiously aggravated stalking (with fear of violence)
• Harassment
• Racially or religiously aggravated harassment
• Stalking
• Racially and religiously aggravated stalking
• Controlling or coercive behaviour in an intimate or family relationship
• Disclosing private sexual images
• Threats to kill

Why has the guideline been issued?

Until now, there has only been very limited guidance in this area of offending. There has been some for magistrates’ courts on harassment and threats to kill, but publication of the new guidelines marks the first time that there has been guidance produced for stalking, for disclosing private sexual images and controlling & coercive behaviour.

The new guidelines, introduced following a public consultation, will, therefore, provide judges and magistrates in England and Wales with consistent and comprehensive guidance when sentencing these related offences.

'Revenge Porn'

The offence of disclosing private sexual images, commonly known as revenge porn, was introduced in 2015. The guidelines reflect the particularly unpleasant and intrusive nature of this offence, acknowledging that any offence of this type can cause severe distress to the victim.

By their nature, these offences involve an offender aiming to cause distress, but the guidelines identify some of the factors that make these offences particularly serious. This includes aiming to maximise distress and humiliation, significant planning, such as setting up fake social media profiles to post the images, and inviting comment and contact, which could result in abuse and sexualised contact from strangers. As a result of the consultation, the Council included an additional factor that would show high culpability on the part of the offender of “repeated efforts to keep images available for viewing”. This was added to reflect the nature of online offending as some offenders repost images online many times after websites take them down.

Controlling or coercive behaviour

The offence of controlling or coercive behaviour in an intimate or family relationship also came into force in 2015, aiming to give more protection to victims experiencing repeated or continuous abuse. Coercive and controlling behaviour can be characterised by an abuser preventing their victim from having friendships or taking part in activities, denying them access to money and controlling aspects of everyday life such as what they can wear, what they can eat and where they can go.

The guideline reflects the nature of this kind of offending and the impact it can have on the victim to ensure an effective and consistent approach to sentencing.
The guideline identifies factors that should be taken into account when assessing the seriousness of an offence. A high level of seriousness would be indicated by factors such as conduct intended to humiliate and degrade the victim, persistent action over a prolonged period and significant psychological harm.

As a result of the consultation, the Council also added a new aggravating factor of “victim left in debt, destitute or homeless due to exploitation of finances” since this was highlighted as an effect of these offences when an offender controls the victim’s access to their money.

Stalking and harassment

The guideline for stalking and harassment comprises entirely new guidance on stalking and significantly expanded guidance for harassment offences. It highlights the main factors that should be taken into account in assessing the seriousness of an offence, such as the level of planning and sophistication, how persistent it was and the level of distress and psychological harm caused to the victim. Aggravating factors include using a position of trust to facilitate the offence, sending grossly violent or offensive material to the victim and the impact of offending on others, such as children.

The guidelines are not intended to alter sentencing practice in the types or levels of sentence given, but they do reflect recent legislative changes that doubled the maximum sentences for stalking and harassment from five years to 10 and from seven to 14 years for the aggravated form of these offences – that is, when they are racially or religiously aggravated.

Offenders falling into the very highest category of seriousness are likely to receive higher sentences as a result of the new legislation which the guidelines reflect.

Will sentences be more severe?

The Sentencing Council does not intend to change sentence severity in respect to these offences significantly. However, one of the key aims of sentencing guidelines is to promote consistency in approach, so offenders who may have received a more lenient sentence than they ought will be less likely to do so in the future.

In our experience sentencing guidelines erode judicial discretion in sentencing, and overall, we see 'sentence creep' in respect to offences where a sentencing guideline is in operation.

Our advocates are careful to ensure that guidelines are just that and that the fullest picture is presented to a court when mitigating on behalf of our clients.

How we can assist

Contact Carys Parry on carys@strainandco.co.uk 01758 455 500 to discuss any criminal law related matters.


26.06.18 Weapons - Government to Get Tough

Weapons - Government to Get ToughThe government has published an Offensive Weapons Bill, which is designed to signal a more stringent approach to the possession of weapons and liquids that can be used to cause harm, such as corrosive substances.

The Bill forms part of the government’s response to the recent rise in serious violence, set out in the £40 million Serious Violence Strategy, which places a new focus on early intervention alongside robust law enforcement.

What is proposed?

  • a new criminal offence of selling - both online and offline - a corrosive product to a person under the age of 18. The substances and concentration levels of what constitutes a corrosive product are set out in the Bill.

  • a new criminal offence of possessing a corrosive substance in a public place. There is a defence of possessing the corrosive substance for a good reason. There is a minimum custodial sentence in England and Wales where a person is convicted for a relevant offence a second time. The offence will carry a maximum sentence of 4 years imprisonment.

  • where a corrosive product or bladed product is sold online, the defence of having taken reasonable precautions can only be relied on where the seller meets certain conditions in terms of age verification and packaging and delivery of the items

  • new criminal offences prohibiting the dispatch of bladed products and corrosive products sold online to a residential address. The offence for bladed products is limited to those that can cause severe injury and includes defences for made to order items and those for sporting and re-enactment purposes. The offence will carry a maximum sentence of 6 months imprisonment.

  • new criminal offences in relation to delivery companies delivering a bladed article or a corrosive product on behalf of a seller outside the United Kingdom to a person under 18

  • updating the definition of a flick knife and prohibition on the possession of flick knives and gravity knives (their sale etc. is already prohibited)

  • amending existing law to make it a criminal offence to possess certain weapons (such as knuckledusters and death stars) – the sale and importation of these is already prohibited. It provides for compensation of owners

  • extending the existing offences of possessing a bladed article or offensive weapon on school premises to cover further education premises in England and Wales and Northern Ireland

  • amending the legal test for threatening with an offensive weapon in England and Wales

  • prohibiting high energy and rapid firing rifles and a device known as a “bump stock” which increases the rate of fire of rifles. Existing owners will be compensated.

How we can help

In recent months the rhetoric around knife-crime has been ramped up by politicians as they seek to respond to public concern about knife-crime.

Judges hear this and often react by imposing increasingly long prison sentences.

It is our role to ensure guilty pleas are only entered when appropriate, and that in the event of a person being sentenced the complete background of the situation is advanced in mitigation. The lives of young people, particularly in metropolitan areas, are complex and often hidden, it is our job to ensure the full picture is presented to a court.

For advice on any criminal law matter, please contact Carys Parry on 01758 455 500 or carys@strainandco.co.uk


05.06.18 Social Media Crime

Social Media CrimeWith the ever-growing popularity of social media websites such as Facebook, Twitter and Instagram it is important to take a step back and consider your use of them. You need to make sure that you and your children not only control the personal information that is put onto social media but also your behaviour on such sites.

Control your information online

Be aware of the potential for cyber-enabled fraud. Fraudsters can use information obtained from such sites to commit identity theft. Telling everyone about your forthcoming holiday may also be an advance initiation to a burglar – it is surprising how much information we reveal about ourselves over a period of time.

If you have children you also need to be aware of the dangers of persons contacting them and then grooming your child, building an emotional attachment to them with a view to a meeting for the purpose of sexual abuse or exploitation.

Many online games allow for messaging between users – do you know who your child is talking to?

Control your behaviour

Many offences can be committed in the heat of the moment, or drink, the typing of a comment that cannot then be taken back.

Trolling, or sending abusive messages online, can be an offence under the Malicious Communications Act 1988 and the Communications Act 2003, with stiff penalties in both cases.

Revenge porn, for example publishing intimate images of an ex-partner without their consent, is now a criminal offence and often results in a prison sentence.

What may seem to be banter may actually be offensive, what may be intended to be seen by a few could be seen by thousands.

A fake social networking profile or account may also be a criminal offence in certain circumstances.

What about freedom of speech?

This is not an absolute right and may be restricted where necessary and proportionate.

Think it couldn’t happen to you?

Remember the Robin Hood Airport case? A young man made what he intended to be a jokey comment about blowing up the airport if he couldn’t make his flight due to adverse weather.

He found himself in court, was convicted by magistrates, and again on appeal before finally his conviction was quashed at a second High Court appeal. By then he had already lost his job as a consequence of the conviction.

What are the consequences?

Social media has even recently been blamed for an increase in knife crime as it can amplify the effect of violence. Accordingly, online offences are being dealt with seriously.

Last year the Crown Prosecution Service updated its policy statements in order to take account of the increase in online abuse, saying that individuals need to appreciate they can’t go online and press a button without any consequences.

At the other end of the spectrum, saying something unpopular or unpleasant is not unlawful, people’s sensitivities need to be balanced with free speech, and we see reported a number of cases that cause us concern.

This tide of sensitivity could result in people pleading guilty when in fact they are not – always take early advice.

How can we help?

If you need further advice in respect of any potential criminal matter please contact Michael Strain on 01758 455 500 or office@strainandco.co.uk


16.05.18 But I had no choice!

But I had no choice!There is a defence in law known as necessity or duress of circumstances. It can be very difficult to demonstrate and will only apply in unusual and extreme circumstances. It is used to describe a situation where someone is forced by the demands of the situation to act unlawfully, and where a worse situation was avoided by acting in this way. This defence is not a reference to self-defence which is a quite separate defence.

What do I need to demonstrate?

You will need to show that you only acted for as long as was necessary. In a driving case where you need to escape a dangerous situation, for example, when you are over the alcohol limit, you must stop as soon as the danger has been averted. If you carried on driving, you would not have a defence.

You must be able to demonstrate that no other action could be taken, that there was genuinely a greater evil that was being avoided by behaving in the way that you did and that your behaviour did not go beyond what was absolutely necessary.

What if I have been threatened?

Sometimes a person will say that he committed an offence out of fear for his personal safety or that of someone else, because of threats that have been made.

The key point is for there to be clear and close danger, and the threat of serious injury or death. Threats to cause damage to property is unlikely to constitute a threat serious enough to provide a defence.

If there is a large gap in time between threat and offence, where a person could have gone to the police but did not, that would not be acceptable.

Gangs and criminality

The defence will often occur in the context of gang violence or owing money to loan sharks due to drugs. The suggestion here is that the defence would be unavailable to those who, having entered those worlds voluntarily, understood how violence was used as a means of securing objectives.

In relation to gang membership the court of appeal has ruled (Sharp [1987] QB 853):

“… where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress.”

As always though, the law on this point is very complex, so always seek legal advice.

In Howe [1987] AC 417 the court expressed the test in the following terms:

“Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or … cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence].”

Does it apply to all offences?

Duress can never be a defence to murder or attempted murder, but strangely it may be a defence to conspiracy to murder (Ness [2011] Crim LR 645).

The potential harshness of this rule can be illustrated by the case of Wilson [2007] 2 Cr App R 411, where a 13-year-old boy, powerless to ignore the instruction of his father, was unable to advance the defence at trial.

It is thought to potentially apply to all other offences.

What about using cannabis for medicinal purposes?

There is no defence of necessity or duress available for using cannabis for medicinal purposes. There have been many cases on this point and in 2005 the courts comprehensively rejected any such argument, stating that it fell well outside of the ambit of duress. It may however amount to mitigation.

How can we help?

The defence of duress and necessity is complicated, this article is a basic overview only. It is vital, therefore, to obtain expert legal advice and representation. Please contact Carys Parri on 01758 455 500 or office@strainandco.co.uk


Translation here soon...

08.05.18 A fydd fy enw yn ymddangos yn y papurau newydd?

Did Ant Get Off Lightly?Os ydych dros 17 oed yr ateb symlaf I’w roi yw y bydd yn debygol o ymddangos.Heddiw mae adroddiadau’r wasg trwy gyfrwng gwefannau cymdeithasol yn gallu digwydd yn gyflym iawn, ac yn aml dyna un peth nad yw rhywun sydd yn wynebu achos troseddol yn ei ystyried. Llys Ieuenctid Bydd person 17 oed neu lai fel arfer yn ymddangos yn gyntaf o flaen Llys Ieuenctid. Mae rheolau caeth yn rhwystro cyhoeddi enw, cyfeiriad, ysgol neu unrhyw beth arall i ddadlennu pwy yw y sawl dan 18 oed sydd yn ddioddefwr, yn dyst, neu yn ddiffynydd mewn llys ieuenctid.Gellir codi’r gwaharddiad mewn rhai achosion; gallwn eich cynghori a gwrthwynebu cais o’r fath ar eich rhan os yw hynny’n addas..os daw troseddwr ifanc o flaen llys oedolion, bydd yr erlynydd yn gwneud cais am orchymyn i wahardd ei enwi. Mewn achosion sifil, er enghraifft gwaharddiad am ymddygiad gwrth-gymdeithasol, nid oes cyfyngiad gohebu.

Aros yn anhysbys. Mae cyfyngiad gohebu awtomatig yn rhwystro enwi athro y mae disgybl o’r un ysgol yn honni iddo gyflawni trosedd yn ei erbyn.Daw’r cyfyngiad i ben pan gyhuddir yr athro, neu ei alw o flaen llys, a gellir wedyn amrywio neu godi’r cyfyngiad. Nid yw enwau dioddefwyr troseddau rhywiol a nifer cyfyngedig o droseddau eraill byth yn cael eu datgelu.

Gall rhai gwrandawiadau o flaen llys gynnwys enw’r diffynydd yn unig, a’r troseddau y mae yn eu wynebu’Mae hyn yn cynnwys dyrannu ac anfon gwrandawiad yn Llys yr Ynadon, gwrandawiad cyn treial yn Llys y Goron.Unwaith mae’r treial wedi dechrau, gallwch ddisgwyl gweld adroddiadau am yr achos cyfan, onibai bod barnwr wedi gorchymyn gwaharddiad.

Cyfyngiadau gohebu o ddewis. Er bod modd gofyn am wahardd cyhoeddi enw diffynydd, rhaid ystyried unrhyw ddewis yn ofalus; ac nid yw gwaharddiad o’r fath yn gyffredin.Gall cais fod yn addas er enghraifft os yw’r diffynydd o fewn rhaglen gwarchod tystion,(ddefnyddiwyd yn ddiweddar y nachos John Venables, llofrudd James Bulger)

Ar gyfer achosion nad ydynt yn mynd o flaen Llys Ieuenctid, mae dewis rhoi cyfyngiad gohebu am ddioddefwr, tyst neu ddiffynydd dan 18oed. Rhaid I’r llys fod yn fodlon bod lles y plentyn yn bwysicach na diddordeb ysol y cyhoedd mewn cyfiawnder agored. Mae dewis tebyg yn achos tystion mewn oed, gyn pe bai’r dystiolaeth yn dioddef o ddatgelu pwy yw’r tyst

Fydd y wasg yn bresennol yn y llys? Mae gan aelodau’r wasg hawl i eistedd mewn gwrandawiad yn unrhyw lys, yn cynnwys Llys Ieuenctid, onibai eu bod wedi eu gwahardd am resymau arbennig, ond anaml a phrin iawn yw hynny. Yr egwyddor gyffredinol yw y dylai cyfiawnder fod yn agored ac yn cael ei drafod yn gyhoeddus. Hyd yn oed os nad yw’r wasg yn bresennol, gall adroddiad o’ch achos ymddangos.

Mae gohebwyr lleol yn gwerthu storiau i bapurau eraill, felly peidiwch a chymryd yn ganiataol, os ymddangoswch o flaen llys rhywle i ffwrdd o’ch ardal, na fydd yr hanes yn eich papur lleol.

Sut gallwn fod o gymorth? Mae’r gyfraith ynglyn a chyfyngiadau gohebu yn gymhleth, ac mae’n drosedd i unigolyn neu ohebwyr fynd yn groes I’r rheolau.Braslun yn unig sydd yn yr erthygl hon o’r materion sydd yn codi.

Un o’r pethau y dylech eu hystyried yn gynnar yn yr achos troseddol yw adroddiadau’r wasg, yn enwedig os yw eich achos yn debygol o ennyn cyhoeddusrwydd.Rhai ystyried yr effaith ar eraill, yn enwedig ar blant, a sut byddech yn delio a hynny.

Os oes gennych bryderon, neu os dymunwch drafod unrhyw beth ynglyn a’ch achos, cysylltwch os gwelwch yn dda a Michael Strain ar 01758 455 500 neu office@strainandco.co.uk


Translation here soon...

08.05.18 Trafferthion talu dirwyon

Did Ant Get Off Lightly?Nid dirwy yw’r gosb arferol roddir yn Llys y Goron, ond pan ddigwydd hynny, mae’n tueddu i fod yn swm uchel iawn.

Oes rhaid talu’r ddirwy i gyd ar unwaith?

Weithiau bydd y llys yn gorchymyn taliad llawn ( o fewn amser penodedig),ond mewn llawer achos bydd gorchymyn I dalu hyn a hyn yr wythnos neu’r mis.

Yn y sefyllfaoedd canlynol ni chewch amser i dalu ( ac felly cewch eich carcharu yn syth os methwch dalu):

a) Os mai carchar yw’r gosb arferol am eich trosedd, a’r barnwr yn credu bod gennych ddigon o fodd talu dirwy yn syth.
b) Nid yw’r barnwr yn credu yr arhoswch yn ddigon hir yn eich cyfeiriad presennol ym Mhrydain i orfodi dulliau eraill o gosbi os methwch dalu’r ddirwy.
c) Pan gewch y ddirwy, mae’r barnwr yn eich dedfrydu i garchar yn syth, i garchar am oes, neu eich cadw mewn canolfan ddisgyblu i droseddwyr ifanc, am y drosedd hon , neu drosedd arall; neu ei fod yn eich dedfrydu yn y modd yma am drosedd yn ychwanegol at fforffedu ei ymrwymiad; neu eich bod eisoes yn y carchar am oes, neu’n treulio cyfnod mewn carchar neu ganolfan ddisgyblu.

Cytuno ar gyfnod o amser yn niffyg talu. Yn unol ag Adran 139 o Ddeddf Pwerau Troseddol ( i ddedfrydu) 2000, rhaid I’r llys benodi cyfnod o garchar yn niffyg talu dirwy.Mae’r carchariad hwn yn ychwanegol at unrhyw gyfnod o garchar y gellid ei gael os na thelir dirwy: “Diben gorchymyn dedfryd o garchar yn niffyg talu yw sicrhau, os oes modd,, bod diffynydd sydd a digon o asedau i allu codi’r arian benodwyd, yn talu, ac na ddylai elwa o gwbl trwy beidio a thalu.Mae’r hawl yna’n deillio nid yn unig o achosion blaenorol, ond o’r gofynion stadudol eu hunain.” (R v Smith (2009) EWCA Crim 344).

Dibynna’r cyfnod hwyaf o garchar ar faint y ddirwy:

Swm dan £200

7 niwrnod

Swm dros £200 ond o dan £500

14 diwrnod

Swm dros £500 ond dan £1000

28 niwrnod

Swm dros £1000 ond dan £2500

45 niwrnod

Swm dros £2500 ond dan £5000

3 mis

Swm dros £5000 ond dan £10000

6 mis

Swm dros £10000 ond dan £20000

12 mis

Swm dros £20000 ond dan £50000

18 mis

Swm dros £50000 ond dan £100000

2 flynedd

Swm dros £100000 ond dan £250000

3 blynedd

Swm dros £250000 ond dan £1 filiwn

5 mlynedd

Swm dros £1 filiwn

10 mlynedd

A yw’r llys bob amser yn rhoi’r cyfnod hwyaf o garchar os gwrthodir talu dirwy? Bydd yn dibynnu ar faint y ddirwy a lleoliad y swm o fewn y rhestr uchod. Mae’n debygol felly gyda dirwy o £55000 i’r cyfnod o garchar am ddiffyg talu fod yn nes i 18 mis na 2 flynedd. syddOnd nid ymarfer mathemategol sydd yn penderfynu.


18.04.18 Request For Driver Information

Did Ant Get Off Lightly?It may be an offence to fail to provide information as the identity of a driver when you receive a written request to do so from (or on behalf of) the police. If convicted, you face a hefty fine and 6 penalty points.

How long do they have to make the request?

A request must normally be served within 14 days of the offence being committed. There is case law where because a postal strike delayed the mail and it was delivered after the 14-day period, the offence was not committed.

If you have any doubt as to whether the notice was served within the requisite time, please contact us for further advice. In some circumstances a valid request can be made after the 14-day period, so do not ignore a request simply because you believe it to be out of time – always seek legal advice.

How long do I have to reply?

From the date the notice is served you have 28 days to reply, or “as soon as practicably after the end of that period”.

Right against self-incrimination

A number of case have dealt with this issue and, put simply, it doesn’t matter, the requirement to identify the driver does not affect your human rights. The court has said “those who choose to keep and drive a car can be taken to have accepted certain responsibilities” and those include the obligation to provide information upon request as to the driver.

What if I really don’t know who was driving?

If you genuinely do not know who was driving, you may have a defence to an allegation of failing to provide driver information.

The defence is that you “could not with reasonable diligence have ascertained who the driver of the vehicle was”. You need, therefore, to make all reasonable enquiries to find out who the driver was, and you will still need to reply to the request, providing what assistance you can. Again, it is best to seek early legal advice as a recent case involving the former politician Lord Howard, has opened up a number of interesting legal arguments.

I did not receive the request and now I have been summonsed, what do I do?

You may have a defence to the allegation. Please contact us for further advice.

What if I provide false information?

It can be tempting to name a spouse, or even someone abroad, in the hope of avoiding penalty points. To do so would amount to perverting the course of justice – which almost always results in a prison sentence. So, don’t do it.

Companies

It is a defence to show that there was no record kept of the driver and that the failure to keep a record was reasonable. The notice can be served by sending it to a secretary or a clerk, at the registered or principal office. It may seem obvious, but a company cannot be given penalty points, so the penalty here would be a fine.

In certain circumstances proceedings can also be brought against company directors, so a company cannot be used as a shield against prosecution for this offence. If your company operates a company car pool it would be wise to ensure that you have robust procedures in place in order to track vehicle usage.

Legal aid

Public funding may be available for such a case, so please contact us for further information.

How we can assist

The law concerning requests for driver information can be complicated. This article is intended to give only a very brief overview of the issues involved.

If you have any concerns or simply to discuss any aspect of your case, please contact Michael Strain on 01758 455 500 or office@strainandco.co.uk


18.04.18 Did Ant Get Off Lightly?

Did Ant Get Off Lightly?Gallwch fod yn cyflawni trosedd os methwch roi manylion am enw gyrrwr cerbyd, os cewch gais ysgrifenedig i wneud hynny gan ( neu ar ran) yr heddlu. Os cewch eich dyfarnu’n euog bydd dirwy drom a chwe phwynt ar eich trwydded yn dilyn.

Faint o amser sydd gan yr heddlu i wneud y cais? Yn arferol, rhaid gwneud hynny o fewn 14 diwrnod I’r drosedd ddigwydd. Oherwydd streic gan weithwyr y swyddfa bost yn rhwystro llythyrau rhag cyrraedd mewn pryd, ac I’r cais gyrraedd ar ol I’r cyfnod 14 diwrnod ddod i ben, mae cyfraith achosion yn datgan na fu trosedd. Os ydych yn amau a gyrhaeddodd y rhybudd o fewn yr amser gofynnol, cysylltwch a ni, os gwelwch yn dda, am gyngor pellach.Gall cais ar ol 14 diwrnod fod yn ddilys mewn rhai amgylchiadau, felly peidiwch ag anwybyddu cais am eich bod yn meddwl ei fod yn rhy hwyr yn cyrraedd – mynnwch gyngor cyfreithiol bob amser.

Faint o amser sydd gennyf i ateb? Mae gennych 28 diwrnod o ddyddiad anfon y cais,”neu cyn gynted ag sydd yn ymarferol ar ol I’r cyfnod yna ddod i ben.”
Hawl hunan-gyhuddiad. Wynebwyd y sefyllfa yma mewn nifer o achosion, ac nid oes ots a dweud y gwir.Nid yw gofyn i chi roi manylion am yrrwr yn effeithio ar eich hawliau dynol chi. Yn ol y llys:”Gellir cymryd yn ganiataol bod pobl sydd yn berchen ar, ac yn gyrru, cerbyd, wedi derbyn bod ganddynt rai cyfrifoldebau;” ac mae hynny’n cynnwys y rheidrwydd i roi gwybodaeth am bwy oedd yn gyrru, os gofynnir iddyn nhw wneud hynny.

Beth os na wyddoch pwy oedd yn gyrru? Os mai dyma’r gwirionedd, gallai fod gennych amddiffyniad am yr honiad o beidio datgelu manylion y gyrrwr.Yr amddiffyniad yw “ na allech fod yn sicr er gwneud ymholiadau manwl.” Rhaid felly holi’n ddyfal er mwyn darganfod pwy oedd yn gyrru, ac ateb y cais a rhoi pa bynnag help a allwch.Eto, gwell cael cyngor cyfreithiol yn fuan, gan fod achos diweddar yn ymwneud a’r cyn-wleidydd, yr Arglwydd Howard, wedi codi nifer o ddadleuon cyfreithiol diddorol.

Ni dderbyniais gais, ac rwyf wedi derbyn gwys i ymddangos gerbron llys; beth ddylwn wneud yn y sefyllfa yma?Hwyrach bod gennych amddiffyniad. Cysylltwch a ni am gyngor pellach.

Beth os rhoddaf wybodaeth anghywir? Hawdd cael eich temtio I enwi gwr neu wraig, neu hyd yn oed rhywun o dramor, gan obeithio osgoi’r pwyntiau cosb. Byddai hyn yn gwyrdroi cwrs cyfiawnder, a charchar yw canlyniad hynny bron yn ddifeth.Felly peidiwch a gwneud hynny!

Cwmniau. Gallwch amddiffyn eich hun trwy ddangos nad oedd cofnod wedi ei gadw o bwy oedd y gyrrwr, a bod hynny’n beth rhesymol i ddigwydd.Gall rhybudd gael ei anfon i ysgrifennydd neu glerc yn y brif swyddfa neu’r swyddfa gofrestredig. Yn amlwg ni ellir rhoi pwyntiau ar drwydded cwmni, felly dirwy fyddai’r gosb.Mewn rhai amgylchiadau gellir dwyn achos yn erbyn cyfarwyddwyr cwmniau fel na ellir defnyddio’r “cwmni fel ffordd o’u gwarchod rhag erlyniad.”Os yw eich cwmni yn berchen ar gronfa o geir, doeth fyddai cael trefn bendant i ddilyn trywydd pob gyrrwr.

Cymorth cyfreithiol. Hwyrach bod modd cael arian o gronfa gyhoeddus mewn achosion fel hyn, felly cysylltwch a ni am fwy o wybodaeth.

Sut gallwn helpu? Mae’r gyfraith sydd yn ymdrin a cheisiadau am fanylion gyrrwyr yn gymhleth.Braslun yn unig o’r problemau all godi sydd yn yr erthygl hon. Os oes gennych bryderon, neu os ydych eisiau trafod unrhyw beth ynglyn a’ch achos, cysylltwch, os gwelwch yn dda, a Michael Strain ar 01758 455 500 neu office@strainandco.co.uk


16.04.18 The 'Right to Be Forgotten' - An Unsatisfactory Score Draw

The 'Right to Be Forgotten'The High Court has given judgment in the first of what are referred to as 'right to be forgotten' cases.

Two applicants referred to in the judgment as NT1 and NT2 had been convicted in the past of a criminal offence. In both cases, the convictions were rehabilitated so far as the Rehabilitation of Offenders Act is concerned, yet details of that offending appear when a google (or other) search is undertaken.

Both applicants wished for Google to de-list the articles, so that on any search they would not appear. The court, therefore, had to grapple with the competing interests of the men who said the information '...is not just old, but out of date, and irrelevant, of no public interest, and/or otherwise an illegitimate interference with their rights', and google which argued that the listing of the information was lawful.

What had the men done?

The essential facts of NT1's case are that in the late 1980s and early 1990s, when he was in his thirties, he was involved with a controversial property business that dealt with members of the public. In the late 1990s, when he was in his forties, he was convicted after a trial of a criminal conspiracy connected with those business activities and sentenced to a term of imprisonment. He was accused of but, never tried for, a separate conspiracy connected with the same business, of which some of its former staff were convicted. There was media reporting of these and related matters at that time. Links to that reporting were made available by Google Search, as were other links, including some to information on a parliamentary website. NT1 was released on licence after serving half his sentence in custody. The sentence came to an end in the early 21st century. Some years later it became a "spent" conviction. The reports remained online, and links continued to be returned by Google Search. In due course, NT1 asked Google to remove such links.

The facts of NT2's case are quite separate from those of NT1. The only connections between the two cases are that their factual contours have some similarities, they raise similar issues of principle, and they have been tried one after the other with the same representation. In the early 21st century, when he was in his forties, NT2 was involved in a controversial business that was the subject of public opposition over its environmental practices. Rather more than ten years ago he pleaded guilty to two counts of conspiracy in connection with that business and received a short custodial sentence. The conviction and sentence were the subject of reports in the national and local media at the time. NT2 served some six weeks in custody before being released on licence. The sentence came to an end over ten years ago. The conviction became "spent" several years ago. The original reports remained online, and links continued to be returned by Google Search. NT2's conviction and sentence have also been mentioned in some more recent publications about other matters, two of them being reports of interviews given by NT2. In due course, NT2 asked Google to remove such links.

What did the court decide?

NT1 lost his case, and the listings will remain for the time-being, although there is expected to be an appeal.

NT2 won his case, and the court made an order that Google delist the information from its searches. The court declined to award compensation or damages. It is not clear yet whether Google will seek to appeal.

Is the law clearer now?

A little!

What is clear is that there is no 'magic bullet' to delisting, each case will have to be considered on its own facts, and therefore a great many people may still need to take court action to try and erase their past activities from Google and other search engines.

In NT2's case the Judge stated:

'My key conclusions in respect of NT2's delisting claim are that the crime and punishment information has become out of date, irrelevant and of no sufficient legitimate interest to users of Google Search to justify its continued availability, so that an appropriate delisting order should be made. The conviction was always going to become spent, and it did so in March 2014, though it would have done so in July of that year anyway. NT2 has frankly acknowledged his guilt and expressed genuine remorse. There is no evidence of any risk of repetition. His current business activities are in a field quite different from that in which he was operating at the time. His past offending is of little if any relevance to anybody's assessment of his suitability to engage in relevant business activity now, or in the future. There is no real need for anybody to be warned about that activity.'

Whereas, in relation to NT1 the Judge held:

'The key conclusions I have drawn are these. Around the turn of the century, NT1 was a public figure with a limited role in public life. His role has changed such that he now plays only a limited role in public life, as a businessman not dealing with consumers. That said, he still plays such a role. The crime and punishment information is not information of a private nature. It was information about business crime, its prosecution, and its punishment. It was and is essentially public in its character. NT1 did not enjoy any reasonable expectation of privacy in respect of the information at the time of his prosecution, conviction and sentence. My conclusion is that he is not entitled to have it delisted now. It has not been shown to be inaccurate in any material way. It relates to his business life, not his personal life. It is sensitive information, and he has identified some legitimate grounds for delisting it. But he has failed to produce any compelling evidence in support of those grounds. Much of the harm complained of is business-related, and some of it pre-dates the time when he can legitimately complain of Google's processing of the information. His Article 8 private life rights are now engaged, but do not attract any great weight. The information originally appeared in the context of crime and court reporting in the national media, which was a natural and foreseeable result of the claimant's own criminal behaviour. The information is historic, and the domestic law of rehabilitation is engaged. But that is only so at the margins. The sentence on this claimant was of such a length that at the time he had no reasonable expectation that his conviction would ever be spent. The law has changed, but if the sentence had been any longer, the conviction would still not be spent. It would have been longer but for personal mitigation that has no bearing on culpability. His business career since leaving prison made the information relevant in the past to the assessment of his honesty by members of the public. The information retains sufficient relevance today. He has not accepted his guilt, has misled the public and this Court, and shows no remorse over any of these matters. He remains in business, and the information serves the purpose of minimising the risk that he will continue to mislead, as he has in the past. Delisting would not erase the information from the record altogether, but it would make it much harder to find. The case for delisting is not made out.'

It would appear that NT2's general attitude and remorse may have been a critical consideration. Therefore, it will not only be the facts of the conviction that are relevant, but the applicant's behaviour since, and his or her current business or other activities.

How we can assist

At the present time we would advise that the outcome of any appeals is known until anyone considers court action in relation to search engine listings. It is quite possible that this issue will ultimately be decided by the Supreme Court, and if that happens it will be at least a year before that happens.

If you have any concerns or simply to discuss any aspect of your case, please contact Michael Strain on 01758 455 500 or michael@strainandco.co.uk


The Disclosure and Barring Service22.03.18 The Disclosure and Barring Service

The DBS is a government organisation responsible for the reporting of convictions and other information to employers and other relevant organisations.

What Data is Held?

The DBS holds three classes of information:

Class 1: spent and unspent convictions, cautions, reprimands and final warnings

Class 2: class 1 information plus police intelligence information (for example the fact that someone has been arrested for a crime)

and

Class 3: A list of people on 'barred lists' who are prevented from working with children or vulnerable adults

What can an employer require?

This depends on what the organisation is. So, for example, if you applied for a job at a local supermarket, only class 1 information would be available, as the job is not sensitive in any way. In such a situation the certificate available would merely show whether there were any unspent convictions that ought to be disclosed. It would be the prospective employee who would request the certificate (called a 'basic check').

For many occupations, an enhanced certificate can be required, which could lead to the disclosure of class 2 and 3 information.

There are obvious examples of such employers, for example, the police service, or professions such as solicitors. But there is also a very wide range of organisations who employ people who may come into contact with children or adults, such as nursing or childcare.

What is on an enhanced certificate?

Unspent convictions will appear on the enhanced certificate.

However, whether spent convictions and police intelligence appear depends on the application of filtering guidelines and individual decision making. So, it may well differ depending on the relevancy of the information to the role.

Surely, it's not fair that a spent conviction, an allegation or an arrest not resulting in prosecution will be disclosed?

This is one of the most frequent questions that we receive, and it is not always easy to answer, in part because we are awaiting some important judgments and a decision from the government in relation to some aspects of DBS.

The starting point is that it is likely that DBS will continue to retain all conviction and intelligence information. This follows a key recommendation following the Soham murders.

The issue for most people is not so much the storing of the information, but the disclosure of irrelevant information.

There is a complex filtering process which will lead to the inclusion or removal of information:

The rules as to when a conviction or caution will be filtered are set out in legislation. This states that a certificate must include the following:

• cautions relating to an offence from a list agreed by Parliament
• cautions given less than 6 years ago (where individual 18 or over at the time of caution)
• cautions given less than 2 years ago (where individual under 18 at the time of caution)
• convictions relating to an offence from a prescribed list
• where the individual has more than one conviction offence all convictions will be included on the certificate (no conviction will be filtered)
• convictions that resulted in a custodial sentence (regardless of whether served)
• convictions which did not result in a custodial sentence, given less than 11 years ago (where individual 18 or over at the time of conviction)
• convictions which did not result in a custodial sentence, given less than 5.5 years ago (where individual under 18 at the time of conviction)
• A list of offences which will never be filtered from a criminal record check has been taken from legislation.

The list includes a range of offences which are serious, relate to sexual or violent offending or are relevant in the context of safeguarding. It would never be appropriate to filter offences on this list. Also, the legislation covers equivalent offences committed overseas.

Positions where filtering does not apply

There are a small number of defined positions where details of all convictions and cautions may be taken into account. These positions do not come through the DBS process. Some examples are police vetting and firearms licence applications.

If the position/occupation is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 but not subject to a disclosure by the DBS; the employer is entitled to ask about, and receive information about, all spent convictions and cautions.

The employer should, however, follow existing guidance and conduct a case-by-case analysis of any spent convictions and cautions and consider how, if at all, they are relevant to the position sought.

It would be advisable for the employer to keep records of the reasons for any employment decision (and in particular rejections), including whether any spent convictions or cautions were taken into account and, if so, why.

If the employee fails to disclose any spent convictions or cautions when required by law to do so, he/she will not be protected from the consequences of this (i.e. the Rehabilitation of Offenders Act will not apply).

Is there anything I can do?

You need to understand before an application is made what is likely to be disclosed. That will enable you to act quickly if notified that disclosure is to be made (but please note that the police are not obliged to notify you in advance).

It is also important to note that the filtering process does not deal effectively with police intelligence information, for example, arrest not resulting in prosecution. The police will apply 'statutory disclosure guidance' alongside a 'Quality Assurance Framework' when making a disclosure decision.

You will be able to make representations to the 'Independent Monitor', and in some instances, it may be possible to take court action to prevent future disclosure.

We have seen a large number of court challenges to the DBS processes, and the High Court ordered another significant change as recently as October 2017 (R (R) v The National Police Chief's Council & Anor [2017] EWHC 2586 (Admin)).

How we can assist

There is no instant answer that can be given to the often-complex scenarios that we are presented with.

The disclosure of irrelevant information can be extremely harmful, and therefore each case must be analysed with the utmost care to ensure against wrongful disclosure.

We have an intimate understanding of the DBS process and are happy to advise, guide and make representations on your behalf, and if appropriate, advice on legal remedies.

To discuss any aspect of your case please contact Michael Strain on 01758 455 500 or office@strainandco.co.uk


Searching For Answers15.03.18 Searching For Answers

In Entick v Carrington (1765), a case concerning the entry to and searching of premises, the court ruled:

“…if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave.”

Entick v Carrington is probably the earliest case law concerning the law of search and seizure, a legal power now described as a 'nuclear option' in the court's arsenal (R (Mercury Tax Group) v HMRC [2008] EWHC 2721). But, it is certainly not the last word, and over the previous few years, there has been a substantial body of developing case law designed to ensure that this most potent state intrusion into the lives of individuals and business is exercised lawfully and proportionately.

Why does it matter?

First and foremost, core constitutional principles are at stake, the power of the state to enter private property (very often during a dawn raid and with the family present) should not be used lightly, particularly during what is normally the early stages of a criminal investigation.

Warrants should only be sought as a “last resort and should not be employed where other less draconian powers can achieve the relevant objective” (R (Mills) v Sussex Police and Southwark Crown Court [2014] EWHC 2523 (Admin)).

The taking of documents, files, computer servers and systems can have a profound reputational impact on business when staff see what is happening, and they and clients lose confidence in the business. The inability to carry out 'business as normal' can put the survival of business at risk and can place an unbearable toll on the individuals involved.

Can I challenge a search warrant?

The powers of search and seizure are spread out over a great many legislative provisions, and the key message is to take legal advice as soon as you are aware that anything might happen or has already happened.

What is clear is that warrants are very often granted on an erroneous basis, with scant regard for the legal principles involved.

Drawing a warrant too widely is a frequent issue (see: R (F, J and K) v Blackfriars Crown Court and Commissioner of Police of the Metropolis [2014] EWHC 1541 (Admin)).

While warrants are issued via a judicial process, the Judge will only be able to rely on what is disclosed by the investigator in private.

Police officers are duty bound to provide the court with full and frank disclosure, highlighting any material which is potentially adverse to the application. This includes a duty not to mislead the judge in any material way. The judge must then apply a rigorous critical analysis to the application so that they can be satisfied that the evidence provided justifies the grant of the warrant and give reasons for their decision.

In Redknapp v Commissioner of Police of the Metropolis [2008] EWHC 1177 (Admin) the court ruled:

“The obtaining of a search warrant is never to be treated as a formality. It authorizes the invasion of a person's home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate or Judge in the case of an application under s.9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted.”

There are various avenues of legal address available, including judicial review. Early intervention may result in the return of documents and property, and in some instances, a claim for damages might be possible.

How we can assist

To discuss any aspect of your case please contact Bethan Williams on 01758 455 500 or office@strainandco.co.uk


Shaken Baby Syndrome05.03.18 Shaken Baby Syndrome

The unlawful death of a child is always a deeply traumatic act and one that shakes any society to its core. For some parents, it represents not only a deeply personal and tragic loss but the beginning of a nightmare.

The reality in most murder and manslaughter cases is that the perpetrator is known, and close to the victim. Investigators will, therefore, look closely at the parents when a child dies, an approach which for a grieving parent can only add to the pain that they are suffering.

Experts will be brought on board very quickly to establish a cause of death, and in some cases, this will be stated to be from injuries caused by excessive shaking, often of such force that it is described as being the equivalent of a car-crash.

An allegation of shaking is often based on the presence of three things (the 'triad'):

• Swelling of the brain
• Retinal bleeding, and
• Blood in the dura (an area between the brain and skull)

The presence of these injuries, as proof of violent shaking, can be found mainly in medical literature emanating from the United States as early as the 1940s.

The research findings went largely unchallenged until 2001 when Dr Jennian Geddes published a paper that offered up alternative explanations for the medical results. In later years other experts would revisit this area of medicine, and they too argue that other factors may be in play.

Experts who have challenged the conventional interpretation of the 'triad' have often paid a hefty price.

Dr Waney Squier, a well-known expert in this area, who has acted in a great many cases, was struck off by the General Medical Council (Medical Practitioners' Tribunal) following a prolonged campaign to discredit her.

However, the GMC finding was reversed by the High Court in November 2016 (Squier v General Medical Council [2016] EWHC 2739 (Admin)).

The science in this area is still in a state of flux, and from a criminal law perspective that is a critical issue as cases must be proved to a standard so that the jury can be sure of the defendant's guilt.

How can we assist?

The highest quality criminal defence work requires not only an understanding of the law, which should be a given but of other related areas, such as medicine. By quickly identifying the pertinent issues we can pull together a top team of advocates and experts with an intimate knowledge of this complex area.

At the same time, we do not lose sight of the fact that people facing these allegations are still in a state of profound shock and grief.

For a confidential and private consultation, please contact Michael Strain on 01758 455 500 or email michael@strainandco.co.uk


Rome19.02.18 What Happens in Rome, May Not Stay in Rome

Most people know that if you commit a criminal offence in the UK, the police will record details of that offence and any subsequent sentence so that it is revealed during any future PNC (Police National Computer) check.

But what about offending abroad, can that be kept a secret?

The answer depends on where the offence has been committed.

Offences in the EU

The UK is part of EU Council Framework Decision 2009/315/JHA; this means that if the foreign offence has an equivalent offence in England & Wales which is deemed “recordable”, it will be notified to ACRO (Automating Conviction Requests Office) who will add it to the PNC.

If a link to Scotland or Northern Ireland is identified in the transmitted data through place of birth or address, the information will be forwarded to the Scottish Police Services Authority (SPSA) and/or the Police Service of Northern Ireland (PSNI) for their information.

Despite this clear framework, it is still often the case that offence information is not, for whatever reason, always reported back to the UK.

What is a “recordable” offence?

Where a foreign offence is received by the UK police it will be updated on to the PNC if it is listed as being a “recordable” offence as set out in The National Police Records (Recordable Offences) Regulation 2000.

The Regulation states that recordable offences are those punishable with imprisonment and those specified in the Schedule to the Regulation.

Offences committed outside the EU

If you have been convicted in a country outside of the EU, the conviction details may be forwarded to the UK if you are a UK national. Much will depend on which country is involved and how committed it is to the exchange of criminal records data, but as outlined below, even if the information hasn't been automatically supplied to UK police, it may still be requested at a later date.

Police Requests

The UK is part of the International criminal conviction exchange, which enables police forces to easily exchange relevant information, on request.

When a foreign national is arrested in the UK, for the majority of police forces the process of requesting a foreign criminal records check is now automated, taking around 10 minutes to process.

Similarly, even if an offence committed outside of the UK has not been communicated to UK police, a request may still reveal it.

And what about foreign nationals who commit offences in the UK?

The UK will exchange records with foreign police forces in accordance with the above rules. To give you an idea of the popularity of criminal records exchanges, between March and November 2017 ACRO received more than 70,300 requests from EU countries alone.

Impact

Competent solicitors will advise you as to the impact of UK convictions if you are a foreign national and will also recognise that checks during criminal proceedings in the UK may reveal convictions from abroad.

This is important as the information could be used as part of a bad character application and may also be relevant to sentencing. Also, it will be important in multi-handed cases to ensure that the full criminal past of any co-defendant has been explored, as this may provide evidence in your favour.

What happens in Rome, or London, or anywhere else for that matter, may be a secret for now, but once criminal proceedings commence it is an altogether different story.

How can we help?

All of our lawyers recognise the International aspects of criminal justice; if you are facing investigation or proceedings for any offence, it is important that you get in touch with us as early as possible so that we can best protect your interests.

Contact Carys Parry on 01758 455 500


The "Right to be Forgotten"15.02.18 Dogs - Avoiding a Death Penalty

It is often said that there is no such thing as a dangerous dog, only a dangerous owner.

While we often refer to 'dangerous dogs' in criminal law, the actual offences relate to dogs 'dangerously out of control'.

Section 10 of the Dangerous Dogs Act 1991 states that:

'a dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person (or assistance dog), whether or not it actually does so.’

The penalties for 'dangerous dog' offences are severe, with imprisonment of up to 14 years available where death is caused, but what is not often understood is that an offence may lead to the destruction of the dog.

In relation to some offences the court may order destruction, but in others, the court must order destruction unless assured (by imposing strict conditions) that the dog would not constitute a danger to public safety.

When deciding whether a dog would constitute a danger to public safety, the court—

(a) must consider—

(i) the temperament of the dog and its past behaviour, and
(ii) whether the owner of the dog, or the person for the time being in charge of it, is a fit and proper person to be in charge of the dog, and

(b) may consider any other relevant circumstances.

Avoiding Destruction

In all cases where a court is considering destruction, attention must be drawn to the court's power to order instead 'contingent destruction', this will prevent the dog's destruction provided that the conditions imposed are met.

The key case remains R v Flack [2008] EWCA Crim 204 where the following criteria were established:

"The relevant principles that can be made in respect of a dog whose owner has been convicted under section 3(1) of the 1991 Act of failing to keep a dog under control in a public place are that:

(1) The court is empowered under section 4(1) of the 1991 Act to order the destruction of the dog.

(2) Nothing in that provision shall require the court to order destruction if the court is satisfied that the dog would not constitute a danger to public safety: section 4(1)(a) of the 1991 Act.

(3) The court should ordinarily consider, before ordering immediate destruction, whether to exercise the power under section 4A(4) of the 1991 Act to order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed ("a suspended order of destruction").

(4) A suspended order of destruction under that provision may specify the measures to be taken by the owner for keeping the dog under control whether by muzzling, keeping it on a lead, or excluding it from a specified place or otherwise: see section 4(a)(5) of the 1991 Act.

(5) A court should not order destruction if satisfied that the imposition of such a condition would mean the dog would not constitute a danger to public safety.

(6) In deciding what order to make, the court must consider all the relevant circumstances which include the dog's history of aggressive behaviour and the owner's history of controlling the dog concerned in order to determine what order should be made."

What We Can Do

It is unlikely that legal argument alone will suffice to convince a court to order contingent destruction. In almost all cases you will need the assistance of an expert in dog behaviour, alongside expert advocacy. We can arrange for the preparation of suitable expert reports.

How We Can Help

If you are facing criminal proceedings, contact us as soon as possible. Our solicitors are well versed in this aspect of the law and will ensure your best defence. Michael Strain on 01758 455 500


Translation here soon...

The "Right to be Forgotten"14.02.18 HEDDLU YN EHANGU'R DEFNYDD O GYFARPAR CLUDADWY I ADNABOD TROSEDDWYR

Yr wythnos hon cyhoeddodd y llywodraeth bod Heddlu Gorllewin Swydd Efrog wedi mabwysiadu gwasanaeth gwirio adnabyddiaeth newydd. Defnyddir y gwasanaeth yma eisoes gan rai heddluoedd dewisol, a bydd 20 arall y gweithredu cyn diwedd y flwyddyn.Wedyn ni fydd angen mynd a rhywun a ddrwgdybir i orsaf heddlu i sicrhau yn union pwy ydyw. Bydd hyn yn fanteisiol i blismyn a rhai a ddrwgdybir, fel ei gilydd, gan ganiatau i'r plismyn fynd ymlaen i wneud dyletswyddau eraill yn gynt, a lleihau y nifer sydd yn cael eu cadw yn y ddalfa yn ddiangen.

Dyma ymateb swyddogion yr heddlu:Mae esiamplau cynnar o'r system newydd ar waith yn cynnwys uned gynnau yn dilyn gyrrwr a'i stopio, ac yn gallu profi yn y fan a'r lle ei fod dan waharddiad gyrru, er iddo roi manylion ffug iddynt. Gwysiwyd ef am dair trosedd a meddianwyd ei gerbyd.Roedd yr uned yn ol wrth eu gwaith ar y ffyrdd ymhen deng munud; onibai eu bod yn cario teclyn sganio olion bysedd, gallai'r broses gymryd hyd at bedair awr wrth orfod mynd a'r dyn i'r ddalfa.

Mae'r gwasanaeth yn gweithio frwy gysylltu sganer olion bysedd i app ar ffon symudol. O fewn eiliadau, gellir gwirio pwy yw'r person a ddrwgdybir trwy ddwy brif gronfa ddata'r heddlu, ac yna eu galluogi i'w drin mewn dull mwy addas.

Mae'r dechnoleg wedi bod ar gael ers ychydig o flynyddoedd, ond gan fod y pris wedi gostwng mae'n awr yn bosibl fforddio ei rhoi ar waith yn genedlaethol.Roedd pris sganer yn arfer bod tua £3000, ond bellach gellir prynu un dan £300.

Ond nid yw Liberty,(cyfundrefn flaenllaw yn ymwneud a hawliau dynol) wedi bod mor frwdfrydig.. Dyma sydd ganddunt hwy i'w ddweud:

Dyma enghraifft o ddull yr heddlu o ddefnyddio technoleg sydd yn ymyrryd a phreifatrwydd, heb drafodaeth gyhoeddus nac arolygaeth ystyrlon gan y llywodraeth. Fel y dechnoleg adnabod wynebau a ddefnyddir fwyfwy gan yr heddlu, cawn wybod am hyn ar ol iddo ddigwydd (heb fawr o gyhoeddusrwydd), ac mae ar gael i nifer cynyddol o heddluoedd ledled y wlad.Yn yr achos yma, trwy neges slei ar gov.uk yn gynnar fore Sadwrn y clywsom am hyn.

Mae ffyrdd pwysig o warchod pobl a ddrwgdybir ar gael yn Neddf yr Heddlu a Thystiolaeth Droseddol 1984 . Os ydych yn pryderu am y defnydd o'r pwerau yma, cysylltwch a ni i drafod ymhellach.Pan mae'r erlyniad yn defnyddio tystiolaeth adnabod trwy olion bysedd, byddwn ni yn cymryd gofal arbennig I sicrhau eu bod yn dilyn y gyfraith.

Sut gallwn helpu? Cysylltwch a ni ar unwaith os ydych yn berson proffesiynol yn wynebu achos troseddol. Mae'n cyfreithwyr yn hyddysg yn yr agwedddau hyn o'r gyfraith, a byddant yn sicrhau y cewch eich amddiffyn yn y modd gorau. Cysylltwch a Carys Parry ar 01758 455 500


Translation here soon...

31.01.18 Yr hawl i gael eich anghofio

Bu maddeuant yn rhan bwysig o'n system gyfreithiol erioed; rydych yn cyflawni trosedd, ac yn derbyn eich cosb, ond wedi talu'ch dyled, dylech fod yn rhydd wedyn i ail-ddechrau, heb ysbrydion o'r gorffennol yn eich poenyddio yn barhaol.Cydnabyddwn bod rhaid cael cyfyngiadau i'r gred yma, felly os cafwyd chi'n euog o lofruddio neu dreisio, anhebygol y gallwch byth ddileu'r gorffennol. Ond am drosedd gymharol fach, neu mor bell yn ol fel nad yw bellach yn berthnasol, gallech ddisgwyl cael symud ymlaen a'ch bywyd.Cyn oes y rhyngrwyd roedd hyn yn bosibl. Buan yr anghofid newyddion lleol ac roedd pobl yn medru symud I ffwrdd I fyw ac ail-ddechrau.

Ond heddiw, gyda datblygiad newyddion ar lein ac unrhyw un bron yn cael cyhoeddi bron unrhyw beth, mae'n ddarlun tra gwahanol .Mae dulliau chwilota pwerus fel Google yn sicrhau os oes gwybodaeth allan yna, mae ffordd o ddod o hyd iddo. Felly, i wrthwynebu hyn mae trafod yn awr am “yr hawl I gael eich anghofio”, a dyna lle mae cyfreithiau gwarchod manylion yn cael eu gweithredu.

Nid syniad newydd yw'r hawl yma wedi ei gyflwyno dan ddeddfau gwarchod data Roedd Llywodraeth Prydain yn cydnabod yr egwyddor hon flynyddoedd yn ol gyda'r Ddeddf Adsefydlu Troseddwyr 1974.Yn ol y Ddeddf hon mae troseddau blaenorol rhywun yn cael eu dileu ar ol cyfnod priodol (mae'r cyfnod hwn yn amrywio yn dibynnu ar y ddedfryd a roddwyd.) Y meddylfryd tu ol i hyn yw, ar wahan i'r troseddau mwyaf difrifol,na ddylai fod blot ar eu cofnod am oes, ond bod ganddynt hawl i fyw heb y cysgod hwnnw, a'r effaith posibl ar eu gwaith neu adrannau eraill o'u bywydau.

Roedd yr egwyddor yr hawl i gael eich anghofio yn cael ei chydnabod gan gyfraith wladwriaethol lawer blwyddyn yn ol felly, cyn i gyfreithiau gwarchod data ymddangos.Dangos mae'r ffaith ei fod wedi codi ei ben ym maes gwarchod data, yn syml, y datblygiad sylweddol mae'r rhyngrwyd yn ei gynnig i rannu gwybodaeth.

Beth mae'r gyfraith yn ei ddweud?

O ganlyniad i gysoni cyfreithiau gwarchod data ar draws yr Undeb Ewropeaidd, mae gan Lys Cyfiawnder Ewrop awdurdod i ddatrys problemau sy'n codi o achosion gwarchod data. Gall llysoedd mewn gwledydd sydd yn aelodau o'r U.E gyfeirio achosion i Lys Cyfiawnder Ewrop ynglyn a rheoliadau ar sut i ddehongli'r gyfraith.

Mae un achos o'r fath -Google Spain SL-V-Agencia Espanol de Proteccion de Datos (AEPD) (Achos C- 131/12, 13 Mai 2014) (2014) Q13 1022 - wedi dod yn bur adnabyddus, ac yn destun dadlau cyhoeddus.

Ar lafar gwlad fe'i gelwir yr Achos Google Sbaen. Dyma'r achos ddaeth a'r syniad o'r hawl i gael eich anghofio i amlygrwydd mewn gwirionedd Yn syml iawn, penderfynnodd yr achos na ddylai gwybodaeth arbennig am rhywun fod ar gael i'r cyhoedd ar y rhyngrwyd ar ol cyfnod o amser ( er ei fod hwyrach yn gywir lawer blwyddyn yn ol, ac yn dal I fod o bosibl); buasai hyn yn tresmasu ar hawliau gwarchod data y person dan sylw. Ond nid oedd yr hawl yn ddiamod. Roedd ystyriaethau eraill allai droi'r fantol yn ei erbyn.

Dyma eglurhad y Llys:

Rhaid egluro ar y cychwyn bod prosesu manylion personol ( fel y rhai oedd yn destun dadl yn y prif achos) gan rhywun yn defnyddio peiriant chwilio'r rhyngrwyd yn debygol o gael effaith sylweddol ar hawliau preifatrwydd a gwarchod manylion personol pan mae'r chwilio yma'n digwydd ar sail enw'r unigolyn.Mae hyn yn galluogi unrhyw un sydd yn defnyddio'r rhyngrwyd I; ddod o hyd i'r wybodaeth am y person hwn sydd ar gael ar y we, yn syml trwy fynd drwy'r rhestr canlyniadau; gwybodaeth posibl am nifer fawr o agweddau o'i fywyd personol, na fyddai wedi eu cydgysylltu, ( neu byddai wedi bod yn anodd iawn gwneud hynny), onibai am y chwiliwr rhyngrwyd, ac felly gallu ffurfio darlun manwl ohono.

Mae effaith yr ymyrryd a hawliau'r unigolyn dan sylw yn fwy oherwydd rhan bwysig y rhyngrwyd a'r peiriant chwilio yn y gymdeithas fodern, sydd yn gwneud y wybodaeth mewn rhestr o'r fath yn hollbresennol O ystyried pa mor ddifrifol y gall yr ymyrraeth yma fod, mae'n amlwg na ellir ei gyfiawnhau, yn syml oherwydd diddordeb defnyddiwr y we yn y prosesu .

Eto, yn dibynnu ar effaith tynnu rhai o'r cysylltiadau o'r rhestr canlyniadau, gallai hynny effeithio ar ddiddordeb cyfreithlon defnyddiwr y we.Yr hyn sydd ei angen yw cydbwysedd teg rhwng y diddordeb hwn a hawliau sylfaenol yr unigolyn y rhoddir manylion amdano ar y we Tra mae'n wir fel arfer bod hawliau'r unigolyn hwn yn bwysicach na diddorde defnyddwyr y rhyngrwyd, gall y cydbwysedd hwnnw, mewn rhai achosion, ddibynnu ar natur y wybodaeth a roddir, a'i sensitifrwydd i fywyd personol yr unigolyn, ac ar ddiddordeb y cyhoedd i gael y wybodaeth yma; mae'r diddordeb yn amrywio, yn enwedig o ystyried y rhan yr unigolyn mewn bywyd cyhoeddus.

Mae gwahaniaeth barn amlwg ymysg y cyhoedd ynglyn a'r egwyddor hon. Mae rhai yn poeni y gallai'r hawl i gael eich anghofio gael ei gamddefnyddio,ac arwain at sensoriaeth o'r wybodaeth sydd ar gael ar y rhyngrwyd. Cynhelir achosion troseddol bob amser yn gyhoeddus. gall manylion am bobl gafodd eu dedfrydu am droseddau ymddangos ar gofnod cyhoeddus, yn amlach na pheidio o ganlyniad i adroddiadau papur newydd am achosion o'r llys.Mae'r rhai sydd yn gwrthwynebu'r <hawl i gael eich anghofio> yn dadlau na ddylid rhwystro mynediad i wybodaeth o'r fath trwy gyfyngu ar beth all ymddangos yn y canlyniadau ar beiriannau chwilio'r rhyngrwyd.

Dyma faes arall o'r gyfraith ble mae gwrthdaro rhwng dau hawl dynol. Mae'r hawl i gael eich anghofio yn rhan o'r hawl i breifatrwydd, ac mae gwrthdaro rhyngddo a'r hawl i ryddid mynegi barn ( sydd yn cynnwys yr hawl i dderbyn yn ogystal a rhannu gwybodaeth).Pan gyfyd dadl fel hyn, rhaid i'r Llys yn y pen draw benderfynu sut i sicrhau cydbwysedd mewn achos unigol

Beth am Lysoedd Prydain?

Mae'r Uchel Lys yn mynd i benderfynu yn fuan ar hyn yn y D.U.
Mae'r hawlwyr mewn dau achos o flaen y Llys ( yn Chwefror a Mawrth 2018) yn ddau berson ( nid yw'r un o'r ddau yn <berson enwog> nac yn wleidydd) wedi eu cael yn euog o droseddu o'r blaen,ond erbyn hyn wedi eu rhyddhau o'r collfarnau dan Ddeddf Ailsefydlu Troseddwyr 1974.

Dedfrydwyd un yn niwedd y 90au am gynllwynio i gyfrifyddu anwir. Dros 10 mlynedd yn ol dedfrydwyd y llall am gynllwynio i atal negeseuon.Mae'r ddau'n honni bod Google yn dal i roi cysylltiadau am eu dedfrydau, mewn ymateb i ymchwiliadau i'w henwau. Cysylltiadau i adroddiadau papur newydd yn cofnodi yr achosion llys gwreiddiol yw rhai maent yn cwyno yn eu cylch.Maent yn dadlau bod hawl ganddynt bellach gael dileu'r manylion hyn o beiriant chwilio Google Wyddom ni ddim i sicrwydd beth fydd gan yr Uchel Lys i'w ddweud, ond barn y mwyafrif o sylwebyddion yw mai dilyn penderfyniadau a wnaed eisoes gan yr Undeb Ewropeaidd fydd yn digwydd.Ond beth bynnag fydd canlyniad yr achos mae'n debygol iawn, yn y pen draw, i fynd o flaen y Goruchaf Lys.

Sut gallwn ni fod o gymorth?

I drafod unrhyw gwestiynau yn codi o'r erthygl hon,cysylltwch os gwelwch yn dda a Michael Strain ar 01758 455 500.


The "Right to be Forgotten"29.01.18 Unexplained Wealth Orders

On 31st January 2018, regulations bring into force sections of The Criminal Finances Act 2017 dealing with unexplained wealth orders (UWOs), along with various other related provisions.
The purpose of this new order is to allow for certain people who obtain property which would ordinarily be beyond their obvious means, to be required to prove how they lawfully acquired it. This is in effect a reverse burden of proof.
Law enforcement agencies often have reasonable grounds to suspect that identified assets of such persons are the proceeds of serious crime. However, they are often unable to freeze or recover the assets under provisions in the Proceeds of Crime Act due to an inability to obtain evidence (often due to the inability to rely on full cooperation from other jurisdictions to obtain evidence).

The authorities which may apply for such an order are:

  • The National Crime Agency

  • HM Revenue and Customs

  • The Financial Conduct Authority

  • The Director of the Serious Fraud Office

  • The Director of Public Prosecutions

If you are subjected to an order of this kind, you must provide a statement which does the following:

  • Sets out the nature and extent of your interest in the property

  • Explains how you obtained the property, particularly how any costs involved were met

  • Provides details of any settlement if the property is held by trustees

  • Sets out any other information about the property specified in the order

In addition to a statement, it may be necessary to supply documents connected to the property as required by the order.
Before it can make an order, the High Court must be satisfied that the following criteria are met:

  • There is reasonable cause to believe that the person in question holds the property and that it is worth over £50000

  • There are reasonable grounds for suspecting that this person’s known income (from lawful sources) would not be enough to obtain the property

  • The person in question is a politically exposed person (see definition below) or there are reasonable grounds for suspecting that they are or have been involved in a serious crime or someone connected to this person is or has been so involved.

A politically exposed person (PEP) is someone who is or has been entrusted with prominent public functions by an international organisation, a State other than the UK or another EEA State, a family member of such a person, a close associate or someone connected to them in another way.
It is a criminal offence to knowingly or recklessly make a statement that is false or misleading in response to an unexplained wealth order. Doing so can result in two years’ imprisonment and/or a fine. This offence can be tried in either the Magistrates’ Court or the Crown Court.
Failing to provide the information, in full or part, may prejudice any civil forfeiture proceedings.
In some cases, a UWO will be accompanied by an interim freezing order. This prohibits the respondent to the UWO and any other person with an interest in the property from in any way dealing with the property.
Where the property is thought to be in a country outside the UK, the Secretary of State may forward a request for assistance to the government of the receiving county. This can be a request to prevent anyone in that country from dealing with the relevant property and provide assistance in managing it as required.
We Can Assist
To discuss this, or any other matter, please contact Carys Parry on 01758 455 500 for prompt specialist advice.


The "Right to be Forgotten"25.01.18 The "Right to be Forgotten"

Redemption has always been an important part of our justice system; you do the crime, you do time. Once your debt is paid, you should then be free to start again, without forever being haunted by ghosts of the past.

We all recognise that there must be limits to this principle, so if convicted of murder or rape, you are unlikely ever to be able to expunge the past. But for relatively minor offending, or offending so far in the past to render it irrelevant, one might expect that you could move on.

Before the internet age, moving on was possible, local news was soon forgotten, or people could move away and start again. But now, with the growth of online news and the ability of almost anyone able to publish almost anything, the picture is different. Powerful search engines such as Google ensure that if the information is out there, there is a method of finding it.

So, to counteract this, people now speak of a 'right to be forgotten', and this is where data protection laws are being utilised.

This ‘right to be forgotten’ is not a new concept introduced under data protection laws. The principle was long-ago recognised by the UK Parliament with the Rehabilitation of Offenders Act 1974. That Act provides that after a specified period of time (which varies according to the sentence that was imposed) a person's previous convictions are regarded as having been "spent". The underlying rationale is that, for all but the most serious offences, people should not have a lifelong "blot" on their record but should be able to live without that shadow, and the consequences it may have for their employment or other areas of their life. So, the principle of a "right to be forgotten" was recognised in domestic law many years ago, and long before data protection laws came along. Its emergence in the field of data protection simply reflects the significant development in the dissemination of information represented by the Internet.

What does the law say?

As a result of the harmonisation of data protection laws across the EU, the European Court of Justice has jurisdiction to determine issues arising from data protection cases. Courts of the member states of the EU can refer cases to the ECJ for rulings as to the interpretation of the law. One such case – Google Spain SL –v- Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014) [2014] QB 1022 - has become fairly well-known and has been the subject of public debate. It is colloquially known as the Google Spain case. It is the case that first really brought to prominence the notion of a "right to be forgotten".

Put very simply, the case decided that, after a period of time, certain information about a person (although it may have been accurate many years ago, and may remain so) should not continue to be made available to the public in Internet search results because to do so would infringe the data protection rights of the individual concerned. The right was not absolute. It could be outweighed by other considerations. The Court explained:

"It must be pointed out at the outset that....processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual's name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous.

In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject's fundamental rights... Whilst it is true that the data subject's rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject's private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life."

This principle sharply divides public opinion. Concern has been expressed that the right to be forgotten could be misused and might lead, in effect, to censorship of the information that is available on the Internet. Criminal cases are invariably conducted in public. Information relating to people who are convicted of criminal offences may well end up on the 'public record', most frequently as a result of newspaper reports of cases that appear in the Courts. Those opposed to the "right to be forgotten" contend that access to this sort of information should not be prevented by restrictions placed on what can appear in the results of Internet search engines.

This is another area of the law in which two human rights come into conflict; the right to be forgotten is a dimension of the right to privacy and it conflicts with the right of freedom of expression (which includes the right to receive as well as to impart information). When disputes like this arise, it is ultimately for the Court to decide where the balance is to be struck in an individual case.

What about the UK courts?

The High Court is soon to decide this issue so far as the UK is concerned.

The Claimants in two cases before the Court (to be heard in February and March 2018) are both individuals (neither is a 'celebrity' or politician) who have previously been convicted of criminal offences, but both have now been "rehabilitated" under the Rehabilitation of Offenders Act 1974. One was convicted in the late 90s of conspiracy to account falsely. Over ten years ago, the other was convicted of conspiracy to intercept communications. Both complain in their respective claims that Google is continuing to return, in response to searches of their names, links to information about their respective convictions. Some of the links that are complained about are links to newspaper articles reporting the original criminal proceedings. The Claimants argue that the time has come for them to be entitled to have these entries removed from searches carried out on Google.

What is the High Court likely to say on this issue?

We simply don't know for sure, but most commentators think that earlier EU decisions are likely to be adopted. But, whichever way the case goes, it is likely, ultimately, to end up before the Supreme Court, so it may be a year or so before we have any clarity.

How we can assist

To discuss any issues raised by this article, please contact Michael Strain on 01758 455 500


Translation here soon...

19.01.18 Pan mae pobl yn crybwyll y gair Bitcoin mae'n amser gofyn cwestiynau.

Mae bitcoin a mathau eraill o arian cudd yn aml iawn yn y newyddion, yn bennaf am eu bod yn cynyddu'n sylweddol yn eu gwerth . Yr wythnos hon cododd gwerth un bitcoin i ychydig dros £10,000. Mae'n arian od, heb gefnogaeth unrhyw lywodraeth na stociau aur. Rhywbeth rhithwir ydyw mewn gwirionedd, a dim byd arall, a'i werth yn llwyr ddibynnol ar gyflenwad a galw;dyna;n wir yw un o'r ychydig nodweddion sydd yn gyffredin rhyngddo ag arian confensiynol.

Beth sydd yn ddeniadol yn ei gylch felly? Pam byddai rhywun eisiau cyfnewid £10,000 am un bitcoin, neu swm llai o arian am gyfran?Un o'r prif atyniadau yw ei fod yn bodoli ar draws ffiniau, y tu hwnt i reolaeth bancio traddodiadol a than fantell ddiogel anhysbysrwydd.Mae'r tair ffaith hudol yna yn gwneud y math yma o arian yn ddeniadol i bobl sydd angen gwyngalchu elw troseddau.

Nid oes gan unrhyw un ddiddordeb pwy sydd yn gwerthu, gellir newid yr elw yn unrhyw le yn y byd bron ( mae yna hyd yn oed beiriannau twll yn y wal yn rhai gwledydd gan gynnwys Lloegr) ac mae cwmni seiffro Blockchain wedi sicrhau na ellir gweithredu'r gyfraith yn y byd newydd hwn o gyllid rhyngwladol.Dyma sydd yn egluro cynnydd o 13 gwaith y gwerth mewn un flwyddyn yn unig, erbyn diwedd 2016.

Ond mwya' yn y byd yw'r symiau sydd angen eu gwyngalchu, y mwya' cymhleth a pheryglus yw hi i ddechrau'r gwerthiant.Dyna pryd mae rhan y dyn canol yn dechrau, rhywun sydd yn cytuno, un ai yn wirfoddol neu yn ddiarwybod, i brynu bitcoin, neu yn fwy arferol, i drosglwyddo symiau o arian ar ran gwyngalchwr arian, gan dderbyn tal am ei ran yn y gwaith .

Weithiau rhyw swm bach o ychydig o gannoedd o bunnau sydd dan sylw, ond yn allosodol (expolated) mae'n swm sylweddol. Gelwir y bobl yma yn fulod arian

Mae'r llywodraeth yn awyddus iawn i reoli yr arian newydd yma, ac mewn datganiad diweddar i'r senedd dywedodd gweinidog y Trysorlys:

Mae Llywodraeth Prydain ar hyn o bryd yn trafod newidiadau i'r 4ydd Gorchymyn Gwrthwynebu Gwyngalchu Arian i sicrhau bod y math yma o ddulliau cyfnewid arian cyfredol, a'r bobl sydd yn gweithredu i warchod yr arian yma yn dod dan reolaeth mesurau Gwrth Gwyngalchu Arian ac Ariannu Gwrthderfysgaeth, er mwyn sicrhau bod awdurdodau cenedlaethol cymwys yn y meysydd hyn yn arolygu gweithgareddau.r cwmniau yma.Mae.r Llywodraeth yn cefnogi amcan y newidiadau hyn. Disgwyiwn i'r trafodaethau ddod i ben ar lefel yr Undeb Ewropeaidd ddiwedd 2017 neu yn gynnar yn 2018.

Bydd pobl yn gallu helpu i wyngalchu arian, heb i'r awdurdodau fedru gwneud llawer i.w hatal, nes bydd y dulliau diogelu yma wedi eu sicrhau.

Hwyrach bod hyn i gyd yn swnio fel deunydd ffuglen, ond yn ystod 9 mis cyntaf 2017, cofnododd Cifas, y gwasanaeth atal twyll, fwy na 8652 achos o fulod arian. Rhan fach iawn o wyngalchu arian yw'r troseddu yma. Os cewch eich dal gall y gosb fod yn sylweddol, a'r llys yn dedfrydu i hyd at 14 blynedd o garchar.

Os yw'n ymddangos bod rhywun agos i chi wedi dod i arian, hwyrach dylech ofyn cwestiynau cyn iddi fod yn rhy hwyr.Mae mwy o wybodaeth ar gael ar wefan y llywodraeth: www.moneymules.co.uk. Os caiff rhywun ei dynnu i fewn heb yn wybod i wyngalchu arian, mae'n bwysig camu'n ol ac archwilio beth yn union ddigwyddodd, gyda mantais edrych ar y sefyllfa o bellter. Bydd dadansoddiad fforensig gofalus o'r amgylchiadau yn dangos unrhyw fanylion amddiffynnol sydd ar gael i unrhyw un sydd yn cael ei amau o wyngalchu arian.Nid yw gwneud camgymeriad gwirion yn drosedd ar hyn o bryd.

Os ydych angen cyngor am wyngalchu arian neu unrhyw fater troseddol arall, cysylltwch os gwelwch yn dda a Michael Strain ar 01758 455 500 neu office@strainandco.co.uk.


The Prosecutor in Your Pocket18.01.18 The Prosecutor in Your Pocket

We are all aware that we live in a surveillance society. CCTV cameras can record our movements around large towns and cities, and many homes now have them installed for protection.

Automatic Number Plate Recognition cameras take a snapshot of car number plates and can not only monitor average speed for road traffic enforcement purposes, but also track the movement of a vehicle over hundreds of miles in most instances; and finally, most people are aware that the location where a mobile telephone call was made can be pinpointed to within a few hundred metres.

But who knew that an App, installed on all Apple phones, and similar Apps on Android devices, could hold the key to a murder case?

Well, one defendant in Germany, Hussein Khavari, found this out to his cost when tried for the rape and murder a 19-year-old student.

While investigators were able to piece together part of the defendant's movements, his location at critical times was unknown.

It was at this point investigators turned their attention to his phone which had been seized as evidence.

Despite refusing to give police the pin to unlock the phone, specialists were able to hack into the phone and examine the data.

When looking at data stored in the Health App, it could be seen that at critical moments, recreated by the police, the data demonstrated a significant increase in activity which correlated with important parts of the prosecution case, namely dragging a body down a river embankment, before climbing back up.

This evidence is being used to dispute Khavari's account of the killing, which he says was by accident, happened at a different location and was not premeditated.

The use of seemingly private data is proving controversial, particularly as there is a friction between the right to privacy and legitimate investigation of crimes. Strong encryption technology is reported to be making life very difficult for investigators and the Home Secretary has spoken many times of the need for new legislation.

This story also reminds us that encryption is only as good as the password behind it.

A 4-digit default code to protect a phone or other device can be cracked within minutes by a data specialist, yet a ten-digit random code would probably only be cracked after many years of trying, if at all.

In the UK, police can, in some circumstances, request that a suspect hand over pin numbers and passwords, failure to do so may be a criminal offence carrying a prison sentence of up to 5 years (s 53 Regulation of Investigatory Powers Act 2000).

How We Can Assist

The issue of privacy and its place in criminal justice is a new and evolving topic, as is the requirement to hand over pins/passwords.

Before revealing your data secrets (or refusing), or if facing an investigation for criminal offences, it is critical that you seek specialist advice as early as possible.
Contact
Carys Parry on 01758 455 500


Translation here soon...

Jury Trial - How Your Fate is Decided07.12.17 Ewch ar ol yr arian

Brawddeg braidd yn ystrdebol o'r ffilm “All the President's Men” yw “Ewch ar ol yr arian”, ffilm am y sgandal oedd yn amgylchynu'r Arlywydd Nixon yn y 1970au.
Ond heddiw, hyd yn oed, y man cychwyn wrth ymchwilio i achosion o dwyll yw'r trywydd ariannol, trywydd sydd yn mynd yn gynyddol anos i'w ddilyn.
Ychydig amser yn ol, roedd dulliau twyllo yn eithaf cyfyngedig, ac o'r herwydd yn bur syml i'w datrys. Ond mae'r sefyllfa wedi newid, gan fod marchnadoedd arian ar draws y byd yn cyfnewid biliynau o bunnoedd yn ystod pob awr o fasnachu.
Mae'r darlun yn fwy cymhleth fyth gyda dyfodiad <dulliau cryptig> o gyfnewid a buddsoddi arian; termau Saesneg megis <swaps, derivatives, forwards> yn ogystal a gwarantau, bondiau a marchnadoedd eilaidd.

Pam mae hyn yn bwysig?
Mae'n bwysig i ni fel cyfreithwyr gan nad yw dealltwriaeth o'r gyfraith yn unig yn ddigon i amddiffyn yn llwyddiannus yn yr achosion cymhleth hyn.
Rhaid i'ch cyfreithwyr yn gyntaf ddeall y cefndir a'r hinsawdd lle cyflawnwyd y drosedd..Rhaid i'ch cyfreithiwr allu siarad yn hyderus gan ddefnyddio'r un termau iaith a chi.

Ond mae'n anhygoel, yn ddiweddar, mewn achos o amlygrwydd arbennig bod tyst ar ran yr erlyniad oedd i fod yn arbenigwr, wedi mynd i'r fath ddyfroedd dyfnion nes iddo orfod cael ei gynghori am ystyr termau ariannol sylfaenol.
Dyma sylw'r Llys Apel am hyn:
<Mae'n fater difrifol pan mae'r Goron mewn erlyniad pwysig dros ben yn galw ar dyst sydd ar goll yn llwyr. Waeth beth fydd canlyniad yr achos, mae'r llanast yma, oherwydd dyna'r gair a ddefnyddiwn i'w ddisgrifio yn ein dyfarniad, yn fater o bwys difrifol iawn yn ein tyb ni.Rydym eisiau gwybod sut y cafodd ei gyfarwyddo ac yntau heb yr arbenigedd.Rydym yn bryderus iawn am hyn, yr ymroddiad y dylid ei sicrhau, a'r modd y daeth hyn i'r amlwg. Mae'n sefyllfa sydd yn ein poeni.>
Cafodd y tyst yma ei <groesholi yn ddeifiol> gan fargyfreithiwr yr amddiffyniad.

Mae gwybodaeth arbenigol yn bwysig. Er bod Llysoedd Apel yna i gywiro camgymeriadau, ni olyga hynny bod pob camgymeriad yn ystod y treial yn golygu bydd y diffynydd yn ei gael yn ddieuog. Felly rhaid I bethau fod yn gywir y tro cyntaf.
Rhaid cael tim amddiffyn sydd yn deall materion ariannol rhyngwladol yn drwyadl, rhai fydd yn medru datrys cymhlethdodau eich achos, ac yn medru cydweithio gyda bargyfreithwyr o'r radd flaenaf gyda'r gallu I wrthwynebu <croesholi deifiol>.

Mae gennym enw da am amddiffyn mewn achosion o droseddau ariannol cymhleth, felly cyn ymddiried eich achos i unrhyw un arall, cysylltwch a ni i drafod eich opsiynau.


Jury Trial - How Your Fate is Decided07.12.17 Extradition - An Introduction

Extradition is the formal process where one country asks another to return a person to stand trial or to serve a sentence. Under multilateral conventions and bilateral extradition treaties, the UK has extradition relations with over 100 territories around the world.

What Is the Process?

The requesting State contacts the UK authorities and makes an extradition request. This may result in a warrant being issued against you, and court proceedings commenced.

It might be the case that you fear an extradition request will be made in the future - if so, you should contact us without delay so that we can advise on the options available.

Save in very exceptional circumstances your case will be heard before a District Judge sitting at Westminster Magistrates' Court in London.

Once formalities are dealt with, the court will consider whether the tests for extradition are met. In some cases, the final decision will rest with the Home Secretary.

In some instances, a case can be disposed of very quickly, in others, it will involve a contested hearing.

The exact process will depend on which extradition regime is being applied, as it varies between requesting States.

Do I Need a Solicitor?

Yes, is the simple answer. Extradition Law is incredibly complex, and there are no circumstances where it is appropriate to try and navigate your way through this legal maze.

A duty solicitor will be available at Court to assist you, but even at that stage, you can insist that we are contacted to help - the earlier we are instructed in the proceedings, the better equipped we will be to assist you.

In some cases, it will be appropriate to use specially trained counsel (barristers) who specialise in extradition law.

Experienced extradition lawyers can advise you on the processes and how an extradition request might be opposed.

Bars to Extradition

• rule against double jeopardy
• the absence of a prosecution decision (whether the prosecution case against the accused is sufficiently advanced)
• extraneous considerations (whether the request for extradition is improperly motivated)
• passage of time
• the requested person’s age
• speciality (the requested person must only be dealt with in the requested state for the offences for which they have been extradited)
• onward extradition (where the requested person has previously been extradited to the UK from a third county, and consent for onward extradition from that country is required but has not been forthcoming)
• forum (whether it would be more appropriate for the requested person to be prosecuted in the UK instead)

The judge must also decide if extradition would be disproportionate or would be incompatible with the requested person’s human rights (for example the right to family life is a person has been settled in this Country for some time). If the judge decides it would be both proportionate and compatible, extradition must be ordered.

Note that the process is different when the final extradition decision is to be made by the Home Secretary.

It is vital that all available evidence is presented during the hearing, and this may involve testimony from experts both in this Country and from abroad.

In a significant number of cases, further avenues of appeal are available to the High Court, and the Supreme Court.

Is Funding Available?

Legal aid may be available depending on your financial circumstances. If you are not eligible for legal aid, then we will be able to offer a privately funded package.

Leave Nothing To Chance

The prospect of being returned to another Country to face legal proceedings is daunting; it is, therefore, essential that you seek out expert assistance at an early stage. Please contact Michael Strain 01758 455 500


Jury Trial - How Your Fate is Decided05.12.17 Jury Trial - How Your Fate is Decided

We talk a lot in this Country about the benefits of a jury trial, how leaving the decision in the hands of 12 people chosen at random, is the fairest way of securing justice, but how does a jury decide?

There is a lot that we do not know

Ironically, the process of how a jury reaches its decision is unknown as laws prevent us examining jury decisions and questioning them on their findings.

There are lots of academic studies, but in reality, they shed little light on the process.

What we do know however is the legal process that guides them in their decision making and despite the lack of 'hard proof.' most lawyers actively support trial by jury.

The internet age

The power of Google and new networking spaces such as Facebook and Twitter can present challenges to a jury trial if jurors seek information from these sources. There is a good reason why certain information is withheld from a jury (for example previous convictions), and going behind explicit instructions not to discuss evidence with anyone other than a fellow juror when the jury is assembled, or seeking information from external sources, undermines jury trial.

For this reason, jurors will be given clear warnings throughout the trial process.

We start with 12

We always start with 12; no criminal jury trial can commence with fewer jurors.

For lots of reasons, however, a trial does not always finish with 12. Jurors may become sick and be unable to return, or in rare cases, they may be removed from a jury due to some misconduct during the trial. As long as the number of jurors does not fall below 9, a verdict can be reached.

A unanimous verdict

At all times, the Judge will be seeking a unanimous verdict from the jury, that is a verdict upon which all the jurors are agreed, so either guilty or not guilty.

In the early stages of deliberation, a Judge is prevented by law from accepting a majority verdict, but the time may come when a majority decision is permissible. The timing of that will depend very much on the facts of the particular case.

When a majority verdict becomes permissible, the jury will be brought back into court and advised accordingly. However, even at that stage, they will be asked to still arrive at a unanimous verdict if that is possible. If not possible, then a majority verdict will be acceptable.

Deadlock

On occasion, it will become apparent to the Judge that the jury cannot reach a verdict, even a majority one. The Judge will often know this as the jury will write a note to explain the situation. The contents of that note will usually not be shared with the advocates, and this is often because 'it contains numbers', i.e. how many jurors are voting one way or the other. Such notes remain confidential in all trials.

When a deadlock occurs a 'give and take' direction will be given, calling upon all jurors to use their collective wisdom to reach a decision.

Decision reached

If the jury reaches a unanimous verdict the issue is settled, but if not, and the time is appropriate for a majority verdict, a majority may be acceptable.

Whether a majority verdict is acceptable depends on the balance of votes, which in turn depends on how many jurors remain.

The combinations are:

Where there are 12 jurors: 11 - 1 or 10 - 2
Where there are 11 jurors: 10 -1
Where there are 10 jurors: 9 - 1

(where the jury falls to 9 jurors, only a unanimous verdict is acceptable).

If the verdict is not guilty, the defendant is free to leave court (assuming that there are no other matters remaining), if guilty, the judge will go on to consider sentencing.

Back to deadlock

If despite further deliberation it becomes clear that the jury is deadlocked, the jury will be discharged, and the trial will be over.

In these circumstances, the prosecution may either proceed with a new trial or abandon the trial (for example where it is clear at that stage that the evidence is weak).

How we can assist

We realise that the trial process can be difficult for both our clients and their families. We work hard at all stages to explain what is going on and what will happen next.

It is your case and you ought not to be reduced to a mere bystander as the legal process occurs around you.

As experienced trial lawyers, we do not lose sight of the person behind the proceedings.


Translation here soon...

30.11.17 Wedi cael dedfryd gan Lys Ynadon, a oes modd apelio?

Mae llawer yn anfodlon ar y dyfarniad ar ol cael dedfryd gan ynadon ac yn dymuno apelio.Hwyrach eu bod yn anfodlon oherwydd diffyg wrth baratoi eu hachos,neu am fod y llys wedi dod I benderfyniad anghywir.

I lawer gall dedfryd fod yn rhwystr mawr i gael gwaith neu i deithio dramor, hyd yn oed pan nad yw'r drosedd ei hun yn un ddifrifol iawn.Nid yw dulliau'r llys o weithredu yn berffaith o bell ffordd. Os oes gennych gwyn, mae'n deg i chi ystyried pa ddewisiadau sydd gennych.

Felly beth allaf ei wneud?

Rhaid sylweddoli yn gyntaf bod angen gweithredu ar unwaith,oherwydd ar ol diwrnod y ddedfryd dim ond 21 diwrnod sydd gennych i gyflwyno apel; peidiwch oedi cyn cysylltu a ni.Os oes rhagor na 21 diwrnod wedi mynd heibio,cysylltwch cyn gynted a phosibl gan y gallwn roi cyngor ar apeliadau hwyr.
Pan gysylltwch gallwn hefyd drafod a fyddai dulliau eraill o apelio yn fwy addas, hynny yw ymchwiliad barnwrol neu fel achos datganedig,dau ddewis fydd yn gorfod mynd o flaen yr Uchel Lys

Oes modd apelio hyd yn oed os plediais yn euog? Hwyrach y byddai modd apelio yn erbyn y ddedfryd a chwithau eisoes wedi pledio'n euog, ond dim ond os oes ansicrwydd.Os felly gallwn ymchwilio i ddwy ffordd o ddatrys y broblem.

Beth sydd yn digwydd yn y gwrandawiad.apel?

Mae Llys y Goron, gyda Barnwr ac Ynadon.lleyg (nid rheithgor) yn gwrando ar yr achos eto.Ond mae gennym gyfle gwerthfawr i adolygu beth allai fod wedi mynd o'i le yn y treial cyntaf a chywiro unrhyw fethiannau.Gallwn hefyd edrych ar unrhyw dystiolaeth arall y dylid ei gasglu ar eich rhan,neu pa ffyrdd defnyddiol i'w dilyn I wrthwynebu'r erlyniad.

Os collaf fy apel beth sydd yn digwydd?

Cewch eich ail~ddedfrydu gan Lys y Goron a byddwch yn gyfrifol am dalu costau;r erlyniad.Byddwn yn trafod unrhyw gostau posibl yn fanwl gyda chi cyn gwneud unrhyw benderfyniad I apelio.
Mae'n bwysig nodi nad yw Llys y Goron wedi ei gyfyngu i roi yr un ddedfryd a'r Llys Ynadon,felly gallech gael cosb fwy.Rhaid trafod ac ystyried y perygl yma,a dyna un rheswm pam byddwn yn ystyried ffyrdd eraill o apelio,sef ymchwiliad barnwrol neu achos datganedig.


Translation here soon...

30.11.17 Dronau a'r gyfraith

Mae'r erthygl yn trafod dronau a'r fframwaith gyfreithiol sydd yn rheoli'r defnydd ohonynt.

Beth yw dron?

Mae dron yn golygu unrhyw wrthrych y gellir ei hedfan yn ddi~beilot. Gallant amrywio o wrthrychau technolegol wedi eu harfogi a ddefnyddir mewn ymgyrchoedd milwrol I declynau llai y gall aelod o'r cyhoedd eu prynu.Canolbwyntir ar y math olaf yma yn yr erthygl hon.Gellir rheoli'r teclynnau hyn o bell neu gellir eu cysylltu a chamera I roi llunau byw i'r sawl sydd yn eu rheoli..Maent yn addas at amcanion addysgol, proffesiynol a hamdden. Mae amrywiol fodelau ar gael yn amrywio mewn maint, cyflymder,cyrhaeddiad a phris.
Pryd mae dronau yn creu problemau?

Maent yn creu problemau pan ymyrrant a gwrthrychau eraill sydd yn defnyddio'r un gofod yn yr awyr.Gallant fod yn broblem i awyrennau milwrol a sifil..Er mai cymharol fychan ydynt, gall gwrthdrawiad achosi canlyniadau difrifol iawn.Mae digwyddiadau o'r fath yn fwy tebygol os yw dronau yn cael eu hedfan yn rhy uchel neu yn rhy agos i safleoedd ble mae awyren yn codi a glanio yn aml

Beth yw'r rheolau?

Os ydych wedi prynu dron i'ch defnydd personol, mae gennych gyfrifoldebau ynglyn a'r defnydd ohono.Gallwch gael eich erlid am dorri'r rheolau hyn.
Cynghorir chi I gyfeirio at Ddeddf Llywio Awyrennau (Air Navigation) yr Awdurdod Hedfan Sifil 2016, yn benodol Erthyglau 94,95 a 241.Gallwch lawr~lwytho y <Cod Dron> oddiar wefan. dronesafe.uk.Rhaid deall eich dyletswyddau hanfodol fel perchennog dron, a llawer o'r rhain yn synnwyr cyffredin:

1.Gwybod sut I hedfan y dron yn ddiogel, a gwneud hynny o fewn y gyfraith.

2. Deall fod y sawl sydd yn ei hedfan yn gyfrifol o fewn y gyfraith am bob hediad.

3. Gofalu eich bod yn gallu gweld y dron -trwy'r amser ; aros o dan 400 troedfedd.

4. Peidio hedfan y dron uwchben ardal boblog.

5.Peidio byth a hedfan o fewn 50 llath I berson, cerbyd neu adeilad nad yw dan eich rheolaeth chi.

6.Sicrhau nad yw unrhyw luniau a gewch wrth ddefnyddio'r dron yn torri rheolau preifatrwydd.

7. Osgoi gwrthdrawiad; ni ddylech ar unrhyw gyfrif hedfan dron yn ymyl maes awyr neu yn agos i awyren.Mae'n drosedd peryglu diogelwch awyren yn hedfan.

Os torrwch y rheolau, gallech fygwth bywydau a hefyd wynebu cael eich erlyn,ac mewn rhai achosion carchar neu ddirwy sylweddol.

A oes rheolau ychwanegol wrth hedfan dronau I ddibenion masnachol?

Os oes angen defnyddio dron I ddibenion masnachol,er enghraifft fel gwerthwr eiddo I dynnu lluniau o'r awyr o eiddo ar werth,rhaid cael caniatad yr Awdurdod Hedfan Sifil. Disgwylir I chi hefyd ddilyn cwrs awdurdodedig fydd yn profi'ch gwybodaeth a'ch meistrolaeth o dronau.

Beth am ddefnydd milwrol dronau?

Rheoli'r defnyddio dron i'r Weinyddiaeth Amddiffyn gan Awdurdod Hedfan Milwrol Mae'r amodau yma yn cynnwys ymchwiliadau a wneir o uchder, ffotograffiaeth a gweithgareddau amlgyfryngol,a dylid edrych ar Erthyglau Rheoleiddio 1600,2320 a 2321 am y gofynion penodol.

I Grynhoi: Felly gall dron fod yn fodd I gael hwyl ac hefyd yn ddefnyddiol, ond mae cryn dipyn o gyfrifoldebau ynghlwm a hwy.Os dilynwch y canllawiau a nodir uchod,byddwch yn llawer llai tebygol o dorri'r amodau sydd yn rheoleiddio'r dechnoleg newydd gyffrous hon.


30.11.17 Follow The Money

Follow The Money'Follow the money' is a rather clichéd line from the film 'All The President's Men' which charted the scandal that engulfed President Nixon in the 1970s.

But even today, the money trail is very much the first line of investigation in serious fraud cases, and one that is increasingly difficult to follow.

Not so long ago, the ways of committing fraud were somewhat limited and for that reason also somewhat simplistic.

That can no longer be said, as financial markets spanning the world transfer billions of pounds during each hour of trading. Emerging 'crypto currencies' complicate the picture even more.

Swaps, derivatives, forwards, securities, bonds, secondary markets.....we could go on and on….

Why does this matter?

It matters to us as lawyers, as a mere understanding of the law is not enough for the successful defence of these complex cases, your lawyers must understand first and foremost the environment in which the crime has been said to have been committed.

Your lawyer must confidently speak 'your language'.

What is shocking, however, is that in a recent high profile case a purported expert witness for the prosecution was so out of his depth that he had to ask advice on basic financial terms.

The Court of Appeal observed:

"It's not a matter to be downplayed when the Crown in a major prosecution calls a witness who is wholly out of his depth.

We take a very serious view of what in the judgment we will describe as a debacle, whatever the outcome.

We want to know how did it come about that he was instructed when he lacked expertise? We are very concerned as to how he can have been instructed, the due diligence, and how it came to light.

We are troubled by it."

This particular witness was exposed by what has been described as a 'devastating cross-examination' by a defence barrister.

Expertise Matters

While the appeal courts are there to correct mistakes, it does not mean that every trial error will result in acquittal.

It is therefore vital that things are right the first time.

This requires a defence team who truly understand the business of international finance, who can unravel the complexities of your case, and can work as a team with top advocates capable of 'devastating cross-examination'.

We have a strong track-record in defending complex financial crime, so before trusting your case to anyone else, get in touch so that we can discuss your options.

Carys Parry on 01758 455 500 or office@strainandco.co.uk


22.11.17 None for The Road

Dim diferyn o alcohol cyn gyrruAs we put Halloween and Bonfire Night behind us, easing into those dark wintry nights, it isn't long before Christmas is in our sights and party season gets underway.

As night follows day, this time also coincides with a national police initiative concerning drink driving, as forces across the country prepare for a spike in the numbers of those tested and arrested for drink and drug driving offences.

While these offences may not seem particularly serious when viewed against other offences, what is not often understood is the real impact that a conviction can have.

Research shows that loss of a licence leads in a great many cases to loss of employment, in turn to loss of housing as bills cannot be paid, and sometimes it is the final straw that breaks a relationship. The financial costs will be felt for many years thereafter as insurance premiums will be greatly increased.

What we also see is that a great many people come before the courts with alcohol readings that are not high, and where offences have been detected the 'morning after'. Offences that can be said to have been committed perhaps more out of ignorance than a wilful disregard for others.

A single error of judgment with devastating consequences.

What is a safe level of drinking if I propose to drive?

No alcohol is the safest level as it ensures that when you get behind the wheel, your reactions are not impaired to any degree at all.

Crucially it also prevents the guesswork that brings so many people before the courts.

Urban myths such as '2 pints are ok' have long since been proved to be false, as have back of the envelope guesses as to how long it takes alcohol to leave the body.

Different people will deal with alcohol in different ways, and even this can vary for a single person depending on a multitude of factors.

Merely feeling OK to drive is not a reliable indicator as to whether you are below the legal limit or not.

As we get merry, we reach a tipping point; we can make foolish choices that will prove costly, sometimes not just measured in financial terms but in injury and even loss of life.

You do not hear a lawyer say this often - but we do not wish to see you this Christmas.

Think, before you drink and drive.

How we can assist

If you do find yourself in trouble, there is a lot we can do to assist.

The police must follow complex procedures to establish a case against you – we can ensure that this has been done.

We can also investigate issues such as 'laced drinks' and 'special reasons'.

Well-presented mitigation can make a real difference to the outcome and even where a disqualification cannot be avoided, we can often achieve a reduction in length.

Contact Carys Parry 01758 455 500 to discuss any driving related matters.


09.11.17 Time to Test the Brakes

Time to Test the BrakesIn December 2016 two men were convicted of manslaughter following an avoidable brake failure that resulted in the deaths of four people, including a young girl.

Neither of the men drove the vehicle, but they were ultimately responsible, as the haulage boss and mechanic. One was sentenced to 7 ½ years, the other to 5 years and 3 months imprisonment.

The case provides a stark reminder of the duty owed by vehicle operators, and one might have hoped that such cases would materially change behaviour.

A year on, it would appear that the situation has not improved as expected, and the Traffic Commissioners for Great Britain this week called upon operators to change their approach to brake performance testing, commenting that:

'...despite the clear lessons from the Bath manslaughter case, operators are simply paying lip service to brake performance testing. In many cases, there’s too little recorded on the brake test to offer a meaningful assessment. In others, no information is recorded at all.'

Testing of vehicles has revealed that these failures not limited to a specific type of licence, size of the operator or a particular sector – it is across the board.

The guidance makes clear that every safety inspection must include a metered assessment of the braking performance of vehicles and trailers. It adds that a road test method to assess the brake performance for all planned safety inspections will usually be inadequate.

Where deficiencies in brake performance are identified, either during use of the vehicle or trailer or at the safety inspection, a measured brake efficiency test must be carried out. The efficiency test must confirm the brakes are performing satisfactorily before the vehicle or trailer can be considered as roadworthy.

What you should do now

Operators should carry out an urgent review of their brake testing regime now.

This should include an analysis of safety inspection records over the last 15 months, looking at whether the type of test and the information recorded is sufficient.

Operators must make sure their brake tests are planned in line with DVSA guidance and satisfy themselves that the vehicles and trailers running under their licence are roadworthy.

We Can Help

We can assist with any road traffic issue so if you need assistance in understanding your obligations, representation before Traffic Commissioners or a criminal court, contact Michael Strain on 01758 455 500


07.11.17 Drugs - No Laughing Matter

Fireworks and the Law'Laughing gas' more properly known as Nitrous Oxide, is back in the news following a Court of Appeal ruling that the substance is controlled by the Psychoactive Substances Act 2016. The Act makes it an offence to possess psychoactive substances with intent to supply, and in limited cases, simple possession is also an offence.

The appeals came about following some cases where Judges ruled that laughing gas is exempt from control under the Act.

The issue on appeal was whether Nitrous Oxide was a 'medicinal product' if it were the offence would not have been committed.

In the 4 cases before the Court of Appeal, two appellants were convicted after trial; the other two had pleaded guilty.

The court ruled:

'We are satisfied that in the circumstances of these cases the nitrous oxide in question could not be categorised as a medicinal product and therefore was not an exempted substance. In our judgment, the matter is clear on existing authority.'

So, is the matter settled?

The key words in the judgment are '...in the circumstances of these cases.'

To answer the question, we need to understand a little more as to the purpose of the 2016 Act. The 2016 Act applies to substances by reference to their effects, rather than listing individual chemical composition, and is drafted to exclude from criminal sanction their supply etc. for purposes other than as recreational drugs.

At first blush, it might be thought that because Nitrous Oxide is undoubtedly used for medical purposes, it would fall squarely within the medicinal products exemption in the Act.

Importantly, however, an ingredient of the offence which must be proved by the prosecution is that the defendant in question intended to supply the substance for consumption for its psychoactive effects.

So, what we have here is a situation where liability under the 2016 Act depends not solely on the chemical composition of the product, but on the intent of the person possessing.

In one of the appeals, the court held:

'...the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.'

The case-by-case approach entails the possibility that different products with precisely the same chemical composition may fall within or outside the definition of medicinal product depending on the circumstances of the individual case.

Conclusion

These cases illustrate well the complexities of the criminal law, differences of scientific opinion and the fact that often it takes some time for an appeal court to clarify the law.

In relation to Nitrous Oxide, it may be that further appeals will follow, particularly if scientific opinion shifts over time.

For any advice about drug or other criminal offences contact Michael Strain on 01758 455 500


31.10.17 Fireworks and the Law

Fireworks and the LawAs we approach Bonfire Night, the night sky is brought alive by the vibrant explosions of noise and colour, but as always, lurking in the background is a risk that failing to deal with fireworks safely and responsibly can bring you to the attention of the police.

Retailers who are thinking of supplying fireworks for the first time should ensure that they are sufficiently familiar with the complex rules that regulate the sale and possession of fireworks.

Contravention of the rules can result in substantial fines being imposed, or even a prison sentence.

One of our crime expert Carys Parry explains the law.

Classes of firework

There are four general classifications for fireworks:

Class 1 - Indoor
Class 2 - Garden
Class 3 - Display
Class 4 - Professional

Certain fireworks are banned entirely, such as mini-rockets, bangers, firecrackers, 'jumping fireworks' and air bombs.

There are also fireworks referred to as 'adult fireworks', which are subject to a local authority licensing regime.

Importation of Fireworks

It is a criminal offence to import fireworks unless notice of the fact is given to HM Customs and Excise, and details of the importer's name and address where fireworks will be kept.

Given the sizeable market in illegal and unsafe imported fireworks, it is always wise only to purchase from established, recognised retailers.

Sale of Fireworks

Retailers must display specified signage warning that it is illegal to sell fireworks to those under 18 years. Retailers should have robust training procedures in place to ensure that store staff know how to recognise under-age purchasers, and challenge as to age in appropriate cases.

There are licensing restrictions on the supply of adult fireworks.

Possession of Fireworks

It is an offence for a person under 18 years to possess most fireworks in a public place. There are limited exceptions for those employed in the business of firework displays and other relevant occupations.

The possession of category four fireworks is prohibited save for those employed in the business of firework displays and other relevant occupations.

Night-time Restrictions

With certain exceptions, such as Bonfire Night, Diwali, New Year's Eve and Chinese New Year, the use of adult fireworks is not permitted during the hours of 11 pm - 7 am. Again, there are specific exemptions.

Noise Levels

Category 3 fireworks are restricted to a sound impulse sound pressure level of 120 decibels. It is an offence to supply any firework that contravenes this restriction.

Public Order, arson, violent and Other Offences

Fireworks are dangerous incendiary devices and in the wrong hands can cause serious injury to persons, animals and property. Many of these offences carry substantial criminal penalties.

Summary

Bonfire Night is a time for fun but can land the unwary in hot water with the police.

We can advise on any aspect of criminal law, so if in doubt contact Michael Strain or Carys Parry on 01758 455 500.


24.10.17 Lights, Camera, Action - Modern Policing

Police forces across England and Wales are preparing for a rollout of 'Body-worn Cameras', and the government has announced that prison officers will shortly be assisted by this new technology.

What are Body-worn Cameras?

BWCs are small recording devices, very similar to a GoPro, which allows for constant audio and video recording in an unobtrusive manner.

The evidence from these cameras can be used to support a prosecution, and some argue that with officers and others aware that their actions could be caught on camera, it will result in a positive effect on behaviour.

Is behaviour calmed when a camera is present?

It is usually accepted that we behave better when being watched, for example, we are less likely to speed past a roadside camera or get involved in unlawful activity.

In 2011, researchers at Newcastle University posted pictures of a pair of male eyes and the caption, “Cycle Thieves: We Are Watching You.” Bike thefts decreased by 62 percent in those locations — and not elsewhere.

A study in Rialto California (USA) in 2012 appeared to show dramatic changes in police behaviour. Complaints against police officers were down 90% compared to the previous year. Critics, however, have been sceptical of this study, in part because only 54 officers participated.

That caution did not result in a slowdown of BWC deployment and by 2015 95% of US large police departments had deployed BWC or had committed to doing so.

Now, police forces in England and Wales are following suit.

Latest research

The Rialto findings seemed to accord with common sense, but a new 18-month study of more than 2,000 police officers in Washington (USA), published on 20th October has disclosed 'almost no effect' on police officer behaviour.

Are BWCs a waste of money then?

This is a controversial question, and there may be many reasons for the Washington findings.

Other arguable benefits of BWCs are:

  • Detecting rogue officer behaviour after the event

  • Accurate recording of evidence

  • Building community trust in the police - In another new study that will be published in the November 2017 issue of the journal Policing, researchers interviewed 249 people who had recent encounters with officers wearing cameras. Those who were aware of the cameras perceived the encounters as more “just” than those who were not.

Conclusion

It would appear that the jury is out as to the efficacy of BWCs, supporters claim that there are definite benefits for both police and public, while detractors cite privacy concerns, sizeable public expenditure and a lack of cogent evidence to support their continued deployment.

What is clear to us is that we see the evidential worth of cameras in an increasing number of cases. Such evidence must, however, be analysed carefully, so as not to fall into the trap of believing that 'the camera never lies'. We often find that video evidence is taken out of context, is distorted, and on occasions when it might be thought helpful to the defence, goes missing.

Contact Michael Strain on office@strainandco.co.uk 01758 455 500 if you would like to discuss any criminal law issues.


Government Signals Tough Sentencing Changes

Over the last few days, the government has announced proposals to introduce new offences and increase sentencing for a range of other offences.

One of our criminal law experts Carys Parry explains the proposals.

Knife crime

Knife crime increased by 20% in the last year, prompting the government to look again at key legislation. Possession of a knife has in the same period increased by 23%.

New laws will make it an offence to deliver to a private residential address a knife sold online. All future online purchases will have to be delivered to a collection address where the age of the purchaser can be verified.

Offensive Weapons

Possession of offensive weapons in a public place is already a criminal offence, but changes to the law will see some 19 items, including flick knives and push daggers prohibited in private places as well.

The government is proposing some limited defences to these possession offences, such as for cultural, artistic or religious use, and exemptions such as museum displays.

Also, there will be a new definition of 'flick knife' to broaden the number of weapons that are classified into this category.

School Premises

It is already an aggravated offence to possess knives and offensive weapons on school premises.

However, the definition of ‘school premises’ does not cover higher and further education establishments such as sixth form colleges or universities. This will be changed to ensure these institutions are also covered by the legislation.

Threats

The government intends to amend the existing offence of threatening with an article with blade or point or an offensive weapon set out in section 139AA of the Criminal Justice Act 1988.

The law currently requires the prosecution to prove that the defendant threatened another with the weapon “in such a way that there is an immediate risk of serious physical harm to that other person”.

The government is proposing to strengthen this offence to ensure that if anyone threatens another person with a knife the offence is committed when the victim reasonably fears they would be likely to suffer serious physical harm. This test will be based on how a reasonable person would respond to such a threat, and not whether the victim was objectively at risk of immediate serious physical harm.

Acid and Corrosive Substances

It is believed that violent attacks using acid and other substances is on the rise, such that a new offence is justified.

The Government proposes to create a new offence of possessing a corrosive substance in a public place. The proposed offence is modelled on the current offence in section 139 of the Criminal Justice Act 1988 of possessing a bladed article in a public place.

It is envisaged that similar defences to the knife possession offence would also apply to the proposed corrosive substance possession offence, such as, if the person could prove they had a good reason or lawful authority for having it in a public place.

Secondly, the government proposes to introduce a new offence preventing the sale of the most harmful corrosive substances to under 18s. This is intended to be similar to the existing knife legislation and is in response to the significant proportion of known offenders who are under 18. Introducing this offence would make it harder for under 18s to obtain products containing the most harmful corrosive substances that are of particular concern and which are being used as weapons to inflict life-changing injuries.

Firearms

The government has identified two particular types of firearms of concern: large calibre (0.50) rifles; and rapid firing rifles. Both types of firearms are currently available for civilian use under general licensing arrangements, but there are concerns about their potential for serious misuse and loss of life if they were to fall into the wrong hands. It is proposed that these two types of firearms should be subject to the stricter controls under the existing provisions of section 5 of the Firearms Act 1968, which prohibit a number of types of firearms from civilian use.

Driving Offences

It is proposed that the maximum penalty for causing death by dangerous driving, or causing death by careless driving while under the influence of drink or drugs be increased to a maximum of life imprisonment.

If this change is implemented, it will lead to new sentencing guidelines being issued which will likely increase the typical sentence in all such cases.

Very few cases would ever merit a sentence of life imprisonment.

There is also a proposal to create a new offence of causing serious injury by careless driving.

This is likely to be one of the most controversial proposals as there is friction between the lower level of culpability and unintended harm, which of course can sometimes be significant.

Conclusion

The government appears to want to send out a tough message about certain types of criminal behaviour. It must be remembered however that sentencing is a fact-specific exercise where the personal mitigation of the defendant must also be considered.

In cases where a guilty plea is inevitable, or a finding of guilt has been made, it is our job to present to a court the best possible mitigation to ensure the lowest sentence possible.

If you face any criminal proceedings, in the first instance contact Carys Parry on 01758 455 500 or office@strainandco.co.uk to arrange a consultation.


Convicted Before A Magistrates' Court - Can I Appeal?

Can I Appeal?Many people convicted before magistrates feel aggrieved at the outcome, and wish to consider an appeal.

A grievance may arise because they think that their case was not prepared correctly, or that the court reached the wrong result.

For many people, a conviction could be a major barrier to employment or travel overseas, even where the offence itself is relatively minor.

The court process is far from perfect. If you have a grievance, it is only right and proper that you consider your options.

So, what can I do about it?

The first thing to remember is that you must act quickly as you only have 21 days from the date of sentencing to appeal your conviction - you should not delay in contacting us.

If more than 21 days have passed, then get in touch as soon as possible as we can advise on 'out of time appeals'.

When you contact us, we will also be able to consider whether other avenues of appeal, namely judicial review and appeal by way of case stated (both to the High Court) are more suitable.

I pleaded guilty, can I appeal?

You might be able to appeal against 'conviction' if you pleaded guilty, but only if your plea is 'equivocal'. In this instance, there are two remedies that we can explore with you.

Do I need permission to appeal?

An appeal against conviction from the magistrates' court to the crown court is what is termed 'an appeal as of right', which means that you do not need any permission to appeal.

In effect, you are entitled to '2 bites of the cherry' although there are some other issues, such as sentence and costs (see below) that you should consider first.

Is sentence suspended pending an appeal?

Your sentence is not suspended pending appeal, although:

We can apply for bail if you are in custody, and

Apply for any driving disqualification to be suspended.

If you have been made subject to a community order, this will need to be complied with, although we will take steps to try and expedite the hearing.

What happens at the appeal hearing?

The crown court, presided over by a Judge and Lay Magistrates (not a jury), hears the case afresh.

We do however have a valuable opportunity to review what might have gone wrong at the first trial and take steps to remedy any failures.

We can also examine what other evidence ought to the gathered on your behalf, or what lines of attack we might usefully deploy against the prosecution case.

If I lose the appeal, what happens?

If that happens, you will be re-sentenced by the crown court, and be liable for prosecution costs. We will discuss the costs implications with you in detail before any decision to appeal is made.

It is important to note that the crown court is not restricted to the same sentence imposed by the magistrates' court, so, you may receive a higher penalty.

This is one of the risks that you need to balance - and one of the reasons why we will at an early stage examine the other avenues of appeal with you (judicial review and case stated).


Environment Agency Clamping Down On Criminal Activity

People who illegally dump waste have cost land and property owners millions of pounds in the last year, according to the Environment Agency.

The financial impact, which relates to the cost of removing waste dumped in fields and empty commercial properties lawfully, could be even higher if land is contaminated or insurance premiums rise as a result. Dumped waste is also a major fire risk.

What is being done?

In a bid to reverse this problem, the Environment Agency is reaching out to property and land owners, commercial property agents, trade associations and local authorities. Their aim is to warn of the dangers posed by waste criminals and advise them, their clients and their members how they can better protect themselves. It is likely that this increased level of activity will lead to more criminal investigations and prosecutions.

Jamie Fletcher, from the Environment Agency said:

“Waste criminals operate throughout the country, offering to remove waste cheaply and then dumping it in fields or empty warehouses. They tend to move to new areas as enforcement agencies become wise to their activities. We know it’s only a matter of time before they target us again so we’re sending out a strong message: Waste criminals are not welcome here and we’re doing everything in our power to deter and catch them.

We can’t do it alone. We work closely with partners to share intelligence on illegal waste activity. And we’re encouraging everyone to do their bit: for property and land owners to be vigilant and better protect themselves and for all businesses, organisations and individuals to manage their waste responsibly, preventing it from getting into criminal hands in the first place.”

Land and property owners are advised to:

1. Check any empty land and property regularly and make sure it is secure.
2. Carry out rigorous checks on prospective and new tenants. Land and property owners have a responsibility to ensure anyone leasing their land/property complies with regulations. They may be committing an offence by allowing waste to be stored on land or property without the relevant permissions and could leave them liable to prosecution.
3. Be vigilant and report any unusual behaviour.

Change on the Roads

In a related development, the Environment Agency and Driver and Vehicle Standards Agency (DVSA) have officially agreed to carry out joint operations across England to cut the transportation of illegal waste and to improve road safety.

The memorandum of understanding will see the Environment Agency and the DVSA using their combined enforcement powers to tackle the transportation of waste to illegal or poorly-performing permitted sites.

The agreement will involve:

1. DVSA staff located within EA teams to ensure a coordinated and effective approach.
2. Sharing of information to increase the effectiveness of roadside enforcement on waste industry vehicles up and down the country..
3. Providing enforcement teams with intelligence relating to waste industry operators.
4. Identifying high risk or illegal goods vehicle operators involved in waste transport..
5. Reducing the number of seriously and serially non-compliant waste industry vehicles on England’s roads.

Advice for Businesses:

There are thousands of commercial properties across the Country thought to be empty, which are owned by businesses and organisations, including fund management companies and local authorities.

The Environment Agency is also advising businesses and organisations of their responsibility to ensure their waste is managed appropriately. Anyone who produces, stores and manages waste is obligated to ensure waste does not cause harm to human health or pollution to the environment under Duty of Care legislation.

Waste crime diverts as much as £1 billion per annum from legitimate business and the treasury. Since April 2011 the Environment Agency has invested £65.2 million nationally to address it. Its specialist crime unit uses intelligence to track and prosecute organised crime gangs involved in illegal waste activity and to ensure any necessary action is taken against them.

Action you need to take

Environmental crime and regulation is a specialist area of law and whether you need advice about your legal obligations, or representation if facing an investigation or prosecution, our team of lawyers is here to provide it.

The penalties in relation to environmental offences can be very high, sometimes reaching the hundreds of thousands of pounds, and in some cases resulting in imprisonment. For example, last week United Utilities was fined £666,000, with costs of £32,000 after pleading guilty to pollution offences at Manchester Crown Court.

You cannot afford to leave your case to chance, contact Michael Strain on 01758 455 500 to arrange an appointment.


A Taxing Problem For Business

Tax Evasion

Change Ahead

The main provisions of the Criminal Finances Act 2017 come into force on 30th September 2017, and there are important things for a business to know.

New Provisions

While tax evasion is already an offence, currently there is no obligation on a company to take steps to stop another person engaging in such illegal activity. With a few exceptions, if you do not personally participate, you can stand idly by while another person offends. These provisions bring this situation to an end so far as certain aspects of taxation are concerned.

How?

The Act will render a business (which includes partnerships) liable to prosecution if a 'tax offence' is committed by an employee or other person performing services for the company (agents etc.).

To be guilty, the following must apply:

• There has been a criminal evasion of tax (whether that resulted in prosecution or not).
• An 'Associated Person' facilitated the commission of that offence (i.e. a person linked to your business).
• A failure by the firm to prevent that facilitation taking place; This is a strict liability element; the business need not know that anything unlawful was taking place.

'Associated Person' means: '...an employee, a person acting in the capacity of an agent, or any other person who performs services for or on behalf of your company who is acting in the capacity of a person performing such services'.

The provisions apply in relation to both UK and foreign offences.

Is There A Defence?

Yes, if you can prove:

(a) That you had in place such prevention procedures as it was reasonable in all the circumstances to expect you to have in place, or
(b) It was not reasonable in all the circumstances to expect you to have any prevention procedures in place.

Therefore, your business needs to have reasonable safeguards in place to be able to try and prevent tax evasion.

What Is The Penalty?

Your company could face an unlimited fine. While there are currently no sentencing guidelines, we can reasonably anticipate these to be very large, in some cases measured in the tens of thousands of pounds and above. You would also need to try and measure the reputational and other damage (such as loss of future contracts) that might follow.

That Doesn't Sound Good, What Can I Do To Protect My Company?

Your business will need to commit to policies and processes designed to prevent your employees and others committing tax facilitation offences. There is no

'one size fits all' policy toolkit that you can purchase off the shelf. To devise such procedures, you will need to:

• Carry out a risk assessment.
• Decide on what is a proportionate response to that risk.
• Ensure top-level commitment within the organisation to implementing any policy/procedure.
• Maintain due diligence.
• Communicate the policy/procedures and train all employees/agents who carry out work on your behalf.
• Monitor and review the policies and procedures to ensure continued effectiveness.

We Will Certainly Put This On Our ‘To Do’ List

While HMRC doesn't expect you to have everything in place on 30th September 2017, it does have some 'day one' requirements, with HMRC stating in its guidance that:

'[We expect] there to be rapid implementation, focusing on the major risks and priorities, with a clear timeframe and implementation plan on entry into force’.'

Help!

Laws relating to business can be challenging at the best of times, but when they could also land your company before the courts and facing crippling fines, it is best to act in advance and do all you reasonably can to put protections in place.

The provisions of the Criminal Finances Act 2017 are only summarised above; it will hardly surprise you to know that they are in fact much more complex, so you should take care to understand in detail your actual obligations.

Contact Michael Strain or Carys Parry if you have any concerns, it’s better to have advice early, rather than risk everything by turning a blind eye

Strain and co
14A Penlan St
Pwllheli
Gwynedd
LL53 5DH
01758 455 500


LIAR?

LiarLiar, ITV's new 6-part drama, is gripping the nation, with people already reaching conclusions as to whether Laura, played by the actress Joanne Froggatt (better known for her role as Anna Bates in Downton Abbey) is telling the truth when she accuses surgeon Andrew of raping her.

For most of us, this is highly watchable drama as we flip flop between whom we believe, our perceptions changed over time by the sophisticated script and device plots.

It is no surprise that some people have formed an opinion already, and recent research demonstrated that half of the jurors might reach a guilty verdict before even going to deliberate with other jurors.

We know that people are on occasion willing to change their minds, just as you might when the plot unfolds.

It is vital therefore that a strong case is advanced from the start, laying a solid foundation for a successful defence.

Our Role

For our clients and their families, facing an accusation of rape or other sexual crime can be a horrendous experience. So, what is our role and how do we defend such cases?

Reactive and Proactive

We always start with a reactive approach. The complainant states they were drunk, our client states they were in fact sober. We entered the bedroom uninvited says one person, we were invited in, says our client, and so on.

We can build the start of a defence with this important work, but we do not have the benefit of the incident in question playing before us on a TV screen, with the truth revealed at the end.

We instead have only the competing versions, and it might feel as if it is simply one word against another, and often it is unless you seek further evidence.

It is a proactive approach to case preparation which makes a difference. We always ensure that:

• All relevant witnesses traced.
• Any CTTV evidence secured.
• Forensic evidence analysed.
• Background checks completed.
• Details of false allegations pursued.

and even, as alluded to already in Liar, any psychiatric issues are explored.

We also understand the personal toll legal proceedings will take on you and your family, and offer a compassionate and reassuring voice at a time when the future may at times appear very dark.

Our Services

Strain and Co Solicitors has decades of experience in defending cases of this type.

Before entrusting your case to anyone else come and meet us, get a feel for our work ethic, and ensure you are confident that you are receiving the best defence possible.

You only get one chance to get this right, so the alternative is unthinkable.

We offer private client services at affordable rates, and legal aid may be available.

So, if you are arrested for, or charged with any offence, call Strain and Co on 01758 455 500 to arrange an appointment, or office@strainandco.co.uk

 

Contact Us

Address: 14A Stryd Penlan, Pwllheli, Gwynedd

Phone: 01758 455500

E-mail: office@strainandco.co.uk

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