A discussion of various offences and the defences available

Joey Barton - What is a Section 18?

Wed, 11 Mar 2026 17:48:44 GMT

Joey Barton's week went from bad to worse, having been ordered to pay Eni Aluko £300,000 he was then refused bail having been arrested for an offence of Section 18 GBH

On 10 March 2026, Joey Barton had been charged with an offence of Section 18 Grievous Bodily Harm with intent.

This offence arises out of the Offences Against the Person Act 1860, a reasonably old piece of legislation but one which continues to deal with offences which fall just short of where death is caused.

In order to be guilty of Section 18, the prosecution must prove the following:

That "really serious harm" or a "wound" was caused - this is taken to having its usual English definition;
That it was caused unlawfully i.e. not in self-defence or lawful defence of another - this must mean that if some evidence is raised the prosecution need to prove it went beyond what was necessary and proportionate;
That it was Joey Barton who caused the injury.

The case is likely to be slightly more complex than the above because there are two Defendants, as such it may involve issues of joint enterprise depending on how the prosecution put their case.

It is perhaps unsurprising that Mr Barton was refused bail, the maximum sentence for an offence of Section 18 is life imprisonment and Mr Barton is already subject to a suspended sentence for calling Jeremy Vine a "bike nonce".

That means that because the offence was committed during the currency of the suspended sentence, if Mr Barton is convicted the suspended sentence will be activated unless it is "unjust" to do so.

The sentencing guidelines suggest that a lengthy custodial sentence will follow for Mr Barton, even if it falls towards the lower end of the guidelines.

Sentencing Act 2026 - Changes

Wed, 11 Feb 2026 17:50:11 GMT

The amendments introduced by the Sentencing Act 2026 have somewhat fallen under the radar, which is surprising given their wholesale changes to the sentencing regime. Not only do they create an assumption of sentences being suspended, they increase the term of a suspended sentence and revamp the role of the Sentencing Council. The purpose of sentencing has also been amended in statute to specifically refer to protecting victims of crime, notwithstanding this has been in guidance hitherto.

The Act received royal assent on 22 January 2026, however, rather than being immediately brought into effect there is an arbitrary cut-off date of “two months” thereafter, hence the provisions will take effect on 22 March 2026.

However, that is limited to certain provisions, the remainder have no transitional provisions at present but are expected to be introduced in the Autumn of 2026.

The Suspended Presumption

There is no provision within the Sentencing Act 2026 which seeks to revert the increase to the maximum sentence in the Magistrates Court. However, what it does do is create a presumption that any sentence which does not exceed 12 months is to be suspended.

This shall apply from the date the provisions are brought into effect, ie. 22 March 2026, such that if the term of imprisonment does not exceed 12 months then the Court must make a suspended sentence order.

The ‘catch-all’ exception is where there are exceptional circumstances which relate to the offence (or the combination of the offence and one or more offences associated with it) or the offender, and justify not making the order.

There are a number of statutory exceptions, which are broadly common sense based, such as where the Defendant is a serving prisoner.

The exceptional circumstances provision is also disapplied in respect of those who have committed an offence which breaches an earlier court order. Finally, exceptional circumstances need not be found where the court is of the opinion that not imposing a sentence of immediate imprisonment would put a particular individual at significant risk of physical or psychological harm.

There is no guidance, at present, as to what will amount to exceptional circumstances but one might anticipate the Sentencing Council issuing guidance in due course.

The Expanded Suspended Sentence

In good news for those Category Three, Significant Role offenders who wish to plead guilty, the maximum term that can be suspended will be increased to 3 years.

However, there may well be a delay in such individuals entering a guilty plea until 22nd March 2026 as the relevant date is the date of conviction. It appears from the way the legislation is drafted that if an individual is convicted on 21st March 2026, the maximum term that can be suspended is 2 years, whereas if they are convicted on 22nd March 2026 this will increase to 3 years.

The maximum operational period will also be increased to 3 years, however, this will only apply where the term of imprisonment which is suspended exceeds 2 years.

The Sentencing Council

The Sentencing Council must now seek the consent of the Lord Chief Justice and the Lord Chancellor to issue them as definitive guidelines. However, that consent can be withheld if it is considered that it is necessary to do so in order to maintain public confidence in the criminal justice system.

Ancillary Matters

The period that a sentence can now be deferred for has been increased to 12 months, rather than the 6 months that applied previously.

The provisions also introduce an automatic whole life order for certain offences, namely for the murder of a police officer, a prison officer or an officer of a provider of probation where the offence was motivated wholly or partly by something done by the victim in the course of their duty

Looking Ahead

For completeness, as per Section 49 (commencement), Sections 1, 2, 4, 5, 7 to 9, 11, 19, 20, 40, 41 and 43 and Schedules 1 and 2 come into force at the end of the period of two months beginning with the day on which this Act is passed (i.e. 22nd March 2026).

The remainder of the provisions are due to be introduced in the Autumn, some of the highlights include:

New requirements as part of Suspended Sentences and Community Orders including Driving Prohibition Requirement (DPR), Public Event Attendance Prohibition Requirement (PEAPR) Drinking Establishment Entry Prohibition Requirement (DEEPR) and a Restriction Zone Requirement (RZR);
There will be changes to bail conditions which will look at the need for there to be a real prospect of an immediate custodial sentence when considering the application of the provisions;
Finally, it appears there will be an ‘Earned Progression Model’ whereby prisoners can work towards a release point at 33% rather than the existing release provisions.

VAT Securities and the Criminal Consequences

Wed, 15 Oct 2025 17:27:23 GMT

It is becoming increasingly common for HMRC to refer cases involving outstanding VAT to issue VAT security notices, there can be serious consequences including criminal prosecution.

1. These can be issued where the VAT sum was, or may have, become due in contravention of paragraph 4(2) of schedule 11 to the Value Added Tax Act 1994 and by virtue of Section 171(4) of the Customs and Excise Management Act.

2. HMRC may impose a requirement that security be provided:

a. in circumstances where a trader having no establishment in the UK fails to appoint a UK VAT agent (VATA 1994, s 48(7));

b. as a condition of paying a VAT credit where HMRC consider it necessary to do so for the protection of the revenue (VATA 1994, Sch 11 para 4(1A));

c. as a condition of a taxpayer supplying or being supplied with goods or services where HMRC consider it necessary to do so for the protection of the revenue (VATA 1994, Sch 11 para 4(2)).

3. Ordinarily, the VAT security sought will be equal to the VAT outstanding and a sum equal to the VAT to cover a trading period.

4. An appeal lies against any such decision under VATA 1994, s 83(1)(I).

5. Where the appeal relates to a decision that security is required as a condition of a taxpayer supplying or being supplied with goods or services (VATA 1994, Sch 11 para 4(2)(b)) the FTT must allow the appeal unless HMRC satisfy the FTT that there has been evasion or an attempt to evade VAT, or that evasion is likely without the requirement for security. For the purpose of addressing whether these conditions are satisfied, the FTT’s jurisdiction would appear to be appellate.

6. In addressing the question whether a decision to provide security is reasonable, the FTT must consider whether the ‘amount of security demanded [is] proportionate to the risk posed by the taxpayer to the revenue, having regard to the fact that the purpose of the security is not to collect … arrears’.

7. The ordinary approach is to request a review of the decision to impose a security, whilst this would not mean that an offence had not been committed, it would be substantial mitigation.

8. The security notice is particularly important as continuing to trade will amount to a criminal offence. If any person supplies or is supplied with goods or services in contravention of paragraph 4(2) of Schedule 11, they shall be liable on summary conviction to a penalty of £20,000. The offences in s.72(1) and (3) are triable either way (see s.72(8)); and the offences in s.72(10) and (11) are triable only summarily.

9. The terms consent, connivance and neglect are not defined in legislation. HMRC guidance states that generally, something done with the consent or connivance of someone normally means something done with their agreement or permission, either explicit or implicit. Negligence will generally occur when someone fails to do what a prudent and reasonable person would do, or simply fails to exercise reasonable care.

10. There is a statutory time limit that applies to these proceedings:

a. That there be no prosecution for an offence committed more than three years prior to the date the information is laid;

b. That there be no prosecution for an offence where sufficient knowledge was before the prosecution (i.e. the CPS rather than HMRC) was more than six months prior to the information being laid.

11. The consequences of an individual being convicted of an offence pursuant to Section 72 (11) are particularly serious as HMRC are increasingly often making an application for compensation. The compensation will be equal to the amount of VAT outstanding at the time the security was issued and may extend to the additional VAT incurred during the continuing period of the offence.

Clandestine Entry - Penalties under the Immigration and Asylum Act 1999

Tue, 29 Apr 2025 18:04:04 GMT

Section 32 of the Immigration and Asylum Act 1999 deals with penalties for carrying clandestine entrants into the UK. It allows the Secretary of State to impose fines on individuals responsible for transporting people who have entered the country unlawfully. This applies to owners, hirers, and drivers of vehicles, including detached trailers.

The Immigration and Asylum Act 1999 has given UK Border Force significant powers in respect of imposing penalties when individuals are considered to be responsible for individuals entering the country unlawfully. One of the biggest challenges faced is that "responsible" is broadly defined, it includes simply being the owner of a vehicle or the driver at the time that clandestine entrants are found.

There are defences available under section 34 of the Act which may exempt a person from penalties. However, they are extremely narrow and only arise if they can prove they were acting under duress.

The clandestine entrant civil penalty scheme in the UK imposes fines on individuals and companies responsible for transporting people who enter the country unlawfully.

If a clandestine entrant is found in a vehicle, the owner, hirer, or driver may face a fine of up to £10,000 per entrant .
If a goods vehicle is not adequately secured, even if no clandestine entrant is found, the driver may be fined up to £6,000 .
Companies may also be liable for fines imposed on their drivers.

There are security measures that transport operators must follow to avoid penalties.

The investigation will begin for the driver at the point the vehicle is stopped, the authorities will also write to the owner of the vehicle setting out a series of questions that they will need to answer.

There are ways to reduce penalties for carrying clandestine entrants into the UK:

Civil Penalty Accreditation Scheme : Joining this scheme can result in a 50% discount
Vehicle Security Measures : Ensuring your vehicle is properly secured and following UK Border Force guidelines can help avoid fines
Record-Keeping : Keeping detailed records of security checks throughout the journey can serve as evidence in case of a penalty
Appeals Process : If fined, you may be able to challenge the penalty by demonstrating compliance with security measures.

The following are considered essential for ensuring there are sufficient and effective security measures in place:These standards typically include:

Vehicle Security Checks – Regular inspections before and during the journey.
Sealing Procedures – Use of tamper-proof seals on doors and compartments.
Security Training – Drivers and staff must be trained to detect and prevent illegal entry.
Record-Keeping – Maintaining logs of security checks and seal integrity.
 Compliance with UK Border Force Guidelines – Following official security protocols.

You can apply to join the Civil Penalty Accreditation Scheme by submitting an application to UK Border Force . This scheme helps hauliers reduce the risk of penalties for carrying clandestine entrants.

Steps to Apply:

Complete the Application Form
Submit the Form – Send the completed application to BF.CPAS@homeoffice.gov.uk .
Follow Security Guidelines – Ensure your vehicles meet the required security standards.
Maintain Compliance – Regularly check and record security measures to stay accredited.

There are steps that will be applied where a driver or owner has been found to have had involvement with clandestine entry, these can result in substantial reductions:

If it is the first time that the driver or owner has been reported in the last six years , then the maximum penalty is reduced to £6,000 per entrant;
If the reporting and systems in place were considered sufficient , then it will be reduced by 50%;
If the Owner of the Company was not present at the time it may also be reduced by 50%;
The fine will be adjusted depending upon the size of the company, this can result in the fine being reduced by a further 75%.

It is vitally important to ensure that you have instructed legal representation in order to limit the penalty that is imposed as where there are several clandestine entrants, the sums involved can be vast.

The Offence of 'Cheating' - The Gambling Commission

Mon, 14 Apr 2025 17:54:26 GMT

Pursuant to Sections 27 and 28 of the Gambling Act 2005, the Gambling Commission has the authority to investigate criminal offences and to authorise charges

The Gambling Commission is responsible for enforcing gambling laws in the UK. It i nvestigates cases of cheating and ensures that gambling operators comply with regulations. The Commission has the authority to prosecute offenders and impose penalties on individuals or businesses that violate gambling laws.

Cheating in gambling is a serious offence under UK law , specifically addressed in Section 42 of the Gambling Act 2005. This legislation was introduced to regulate gambling activities and ensure fairness in betting markets. The offence of cheating applies to individuals who attempt to gain an unfair advantage through deception or interference with gambling processes.

The Gambling Act 2005 does not provide a strict definition of cheating, as such it would be given its usual dictionary definition. A person commits an offence where they cheat at gambling, or do anything for the purpose of enabling or assisting another person to cheat at gambling. This includes using confidential information for the purpose of gaining an unfair advantage .

The way the legislation is drafted makes clear that this is deliberately broad, however, cheating at gambling may, in particular, consist of actual or attempted deception or interference in connection with the process by which gambling is conducted , or a real or virtual game, race or other event or process to which gambling relates .

Unusually, this is not an offence which appears to require a dishonest state of mind. The Supreme Court held in Ivey v Genting that in assessing whether the conduct was cheating it was unnecessary to decide whether it was dishonest. This was adopted in the criminal case of R v Barton [2020] EWCA Crim 575 that although that considered the test for dishonesty more broadly, rather than the specific application to the offence of 'cheating' in the Gambling Act 2005.

The penalties for cheating under the Gambling Act 2005 can be severe :

- On summary conviction: Up to 51 weeks imprisonment (or 6 months in Scotland) and/or a fine.

- On conviction on indictment: Up to two years imprisonment, an unlimited fine, or both.

The Gambling Commission recently announced that they had authorised charges following an investigation into the timing of an election being called.

Sentencing Guidelines - An Introduction

Wed, 09 Apr 2025 16:44:18 GMT

Sentencing Guidelines are drafted by the Sentencing Council, a body which was set up in April 2010, Judges and magistrates must follow the guidelines issued by the Sentencing Council ‘unless the Court is satisfied that it would be contrary to the interests of justice to do so’.

Sentencing guidelines play a crucial role in ensuring consistency and fairness in the judicial system. They provide a structured approach for judges and magistrates when determining appropriate sentences for offenders.

There are a number of factors which must be considered as part of the sentencing guidelines:

The severity of the offence and the maximum sentence that can be imposed;
The culpability of the offender;
The harm caused by the offence;
Any aggravating and mitigating features.

Judges and magistrates must follow sentencing guidelines unless doing so would be contrary to the interests of justice. The guidelines provide a range of sentencing options, from fines and community orders to custodial sentences. They also help courts determine whether a sentence should be suspended or served immediately. For example, drugs supply offences can vary significantly—from a minor altercation to a violent attack causing serious injury. Sentencing guidelines help courts assess the severity of each case and impose an appropriate sentence.

There are three types of guideline that Judges and Magistrates have to follow:

Offence-specific guidelines: These apply to particular crimes, such as theft, assault, or drug offences;
Overarching guidelines: These provide general principles for sentencing, such as guidelines for sentencing children and young people. These guidelines include the approach to credit for guilty plea, totality and whether a custodial sentence can be suspended;
General guideline: Used when no specific sentencing guideline exists for an offence.

The Approach to Sentence

Judges and Magistrates will often approach a sentencing exercise in the following order:

Determine the applicable sentencing guidelines:
This will be the offence specific guideline e.g. supply of drugs.
Make a finding as to the categorisation of harm:
This may be the harm suffered by the victim;
It can also relate to the quantity of the crime which has been committed e.g. quantity of drugs supplied / money laundered
Decide the level of culpability
This will involve determining how involved an offender was and how sophisticated the offence was;
This may also involve considering how serious the offence was e.g. whether there was a weapon involved.
Consider the aggravating and mitigating features
This includes considering the individual's personal circumstances and whether they have any previous convictions;
There are statutory aggravating and mitigating features for many offences and these must be considered.
Apply any statutory reduction
If a defendant pleaded guilty, they could be entitled to a one third reduction;
This may include totality where there are a large number of offences.
Consider whether the sentence, if custodial, can be suspended and if so what requirements should be added.
This involves considering the imposition guidelines and whether to obtain a pre-sentence report from probation, if one has not already been obtained.

Imposition Guidelines

There has been a great deal of discussion recently regarding changes made to what are known as the imposition guidelines (the guidelines which assist in deciding whether a sentence should be served in prison or in the community ). On April 1, 2025, the Sentencing Council intended to publish a revised guideline on imposing community and custodial sentences, emphasising pre-sentence reports (PSRs) and tailored sentencing. These proposed guidelines suggested that where offenders were from certain ethnic minority backgrounds or had certain characteristics, there was a particular need for a pre-sentence report. The Justice Secretary disagreed with this approach claiming it would lead to two-tier justice , as a result of this the changes have been delayed. The tests under the imposition guidelines remain the same.

A Judge or Magistrate when applying the imposition guidelines will balance the factors which require a sentence of imprisonment and those which suggest a community sentence would be appropriate.

Factors requiring a prison sentence:

Offender presents a risk to any person
The seriousness of the offence means that appropriate punishment can only be achieved by immediate custody
History of poor compliance with court orders AND unlikely to comply in the future

Factors supporting a sentence in the community:

Realistic prospect of rehabilitation in the community
Offender does not present high risk of reoffending or harm
Strong personal mitigation
Immediate custody will result in significant harmful impact upon others, including any dependent children or where the offender is pregnant or postnatal (has given birth in the previous 12 months)

Football Banning Orders - A Guide

Sun, 30 Mar 2025 11:39:02 GMT

Football banning orders (FBOs) are a legal tool used in the UK to prevent individuals involved in football-related disorder from attending matches. Introduced under the Football Spectators Act 1989 , these orders aimed to manage supporter behaviour and ensure the safety of fans and players.

Football banning orders are court-issued restrictions placed on individuals who have committed offences related to football violence, disorder, or hate crimes. These orders prohibit offenders from attending football matches for a specified period, which can range from three to ten years , depending on the severity of the offence.

A football banning order can be issued for various offences, including:

Violence or disorder at football matches.
Pitch invasions that disrupt games.
Use of pyrotechnics or flares in stadiums.
Online hate crime linked to football.
Alcohol-related offences at football events.

In 2025 , new legislation was introduced to prevent individuals with FBOs from travelling to international tournaments. For example, Chelsea and Manchester City fans with banning orders will be required to surrender their passports during the FIFA Club World Cup in the USA. This measure aims to prevent troublemakers from causing disturbances abroad.

As well as being dealt with for the original offence, a breach of a football banning order can also have serious consequences. Individuals who fail to comply with an FBO face severe consequences, including:

An unlimited fine .
Up to six months in prison .
Additional restrictions on travel and attendance at football events.

The effect of a football banning order can be substantial, it is important to ensure that they are only imposed where necessary and proportionate.

Under Section 14A of the Football Spectators Act 1989 , a court must impose an FBO if:

The individual has been convicted of a relevant offence (such as violent or disorderly conduct at a football match).
The court believes that imposing an FBO would help prevent future football-related violence or disorder .
The court does not find any exceptional circumstances that would make imposing the order unjust .

A police force or the Crown Prosecution Service (CPS) can apply for an FBO even if the individual has not been convicted of a criminal offence. In such cases, the court must be satisfied that:

The individual has caused or contributed to football-related disorder .
The order is necessary to prevent future incidents.

Murder v Manslaughter - Understanding the Difference

Wed, 12 Mar 2025 11:30:43 GMT

In criminal law, murder and manslaughter are both forms of unlawful killing. The key difference between the two offences relates to the defendant's intent when the death was caused.

Murder: The Most Serious Offence

Murder is the intentional killing of another person under circumstances where the law does not provide justification or excuse. It carries a mandatory life sentence upon conviction.

What Must Be Proven for a Murder Conviction?

For a defendant to be found guilty of murder, the Prosecution must prove the following so that the jury are sure:

That a death was caused as a result of an act by the Defendant;
That the death was caused unlawfully (i.e. not in reasonable self-defence or defence of another);
That the Defendant had the intent to cause really serious harm , it need not be proven that the Defendant intended to kill (although for attempted murder that is the required mental state).

Intent: The Defining Factor

A key aspect of murder is intent—known in legal terms as mens rea (the mental element of a crime). The Prosecution does not need to prove that the defendant specifically intended to kill ; intent to cause serious harm can suffice.

For example, if a person violently attacks another with intent to cause serious injury, but the victim later dies, this can be classified as murder even if the assailant did not explicitly intend to kill.

Manslaughter

Manslaughter also involves the unlawful killing of another person, but it lacks the element of specific intent to kill or cause serious harm . Because the level of culpability is lower, manslaughter carries a more flexible sentencing range, rather than a mandatory life sentence.

Types of Manslaughter

Manslaughter can be divided into two main categories, voluntary and involuntary.

Voluntary Manslaughter is where a person intended to cause serious harm or kill, but there is a valid partial defence, reducing the charge from murder. Diminished Responsibility is where the defendant was suffering from a recognised medical condition that substantially impaired their ability to understand their actions, form rational judgment, or exercise self-control. Loss of Control will arise if the defendant killed due to a loss of self-control triggered by circumstances that would have caused a person of normal tolerance and restraint to act similarly. These are both considered partial defences to murder.

Involuntary Manslaughter is w hen a person causes death through recklessness, negligence, or unlawful actions but did not intend to harm or kill. Unlike murder or voluntary manslaughter, involuntary manslaughter does not require intent to kill or cause serious harm. Instead, it typically arises from Gross Negligence or an Unlawful Act.

Listed Building Consent - Criminal Liability and Offences

Sun, 02 Mar 2025 09:10:06 GMT

Section 7 of the Planning (Listed Buildings and Conservation Areas) Act 1990 states that listed building consent is required before carrying out any works that would alter, extend, or demolish a listed building in a way that affects its character as a building of special architectural or historic interest.

The provisions of Section 7 mean that owners or developers must obtain permission from the local planning authority before making changes to a listed building. Failure to secure consent before carrying out such works can result in criminal liability, including fines or prosecution. The need for permission applies where there is alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised.

Section 9 establishes that unauthorised works to a listed building—such as alterations, extensions, or demolitions—without obtaining listed building consent are criminal offences .

This means that individuals who carry out such works without approval from the local planning authority may face legal consequences , including:

An unlimited fine or imprisonment .
Prosecution .
Potential enforcement action requiring the restoration of the building to its previous state.

Additionally, Section 9(3) provides a defence in cases where emergency works were carried out to protect health, safety, or the preservation of the building , provided that:

The works were urgently necessary .
It was not practicable to secure safety or preservation through repairs or temporary support.
The works were limited to the minimum measures immediately necessary .
The local planning authority was notified in writing as soon as reasonably practicable.

Restraint Orders - Challenges and Variations

Mon, 03 Feb 2025 11:43:41 GMT

A restraint order is an order put in place to restrain funds or assets. It can be applied for either by a prosecutor or an accredited financial investigator. An application for a restraint order may be made in the absence of the parties impacted by the order.

A restraint order can be granted if any of the following conditions are satisfied (Section 40):

A criminal investigation has been started and there are reasonable grounds to suspect an individual has benefited from their criminal conduct;

Proceedings for an offence have been started in England and Wales and not concluded, and there is reasonable cause to believe that the defendant has benefited from their criminal conduct;

An application has been made pursuant to the Act and not concluded or the Court believes such an application is going to be made.

If any condition set out in section 40 is satisfied the Crown Court may make an order (a restraint order) prohibiting any specified person from dealing with any realisable property held by him.

As such, it is ultimately a matter for the discretion of the Crown Court. A restraint order may be made both against the defendant or person under investigation, and any other person holding realisable property.

The Order can be made in respect of all property held by an individual or it can be limited to specific assets listed in the Order.

Disclosure of Information

When an application is made for a restraint order, there is a duty of candour on the part of the Applicant. It was confirmed in In Re Stanford International Bank Ltd; Janvey v Wastell; Serious Fraud Office v Wastell [2010] EWCA Civ 137 that this duty must be fully understood and complied with. It was held that the application should ask themselves what they would be saying if they were opposing the application and to tell the Judge that.

This approach has subsequently been extended to there being an expectation that there is signed confirmation that a duty of candour has been complied with.

Applying to Vary the Order

An application to vary or discharge a restraint order may be made by the person who applied for the order and any person affected by the order (s.42(3)). As per Section 42 (5), the Court may vary or discharge the order. An exception cannot be made for legal expenses in relation to the actual offence in respect of which the Restraint Order is made (s41(4)(a)).

The Risk of Dissipation

An application for a restraint order should only be made where there is a reasonable risk that realisable property may be dissipated. The court needs to consider the impact personally or commercially on the defendant or any third parties prior to making a restraint order, and must ensure that the order is proportionate in relation to protecting the public interest.

It was held in R v B [2008] EWCA Crim 1374 that a judge is required to be satisfied that the risk must be real, rather than fanciful, that if the order is not made the assets in respect of which the order is requested are liable to be dissipated. Whilst a delay in obtaining on order is not a bar to an application, if there is evidence of non-dissipation it is for the prosecution and the judge to explain how it could be said that there was a real risk that he would dissipate assets when he had had every opportunity to do so in the past.

Proportionality and Discretion

The authority of R v Waya [2012] UKSC 51 requires the court to make a confiscation order that is not disproportionate; this is not to be equated with a general discretion vested in the court nor a general provision to avoid hardship or injustice (as per R v Morrison [2019] EWCA Crim 351. The word “disproportionate” means that a confiscation order must be proportionate to the achievement of the statutory aim which is to recover the financial benefit that the offender has obtained from the conduct.

The Court’s discretion should be directed at preserving the value of realisable property for the purpose of satisfying a confiscation order in the event the Defendant is convicted ( Archbold 5B-101 ).

In R v Windsor [2011] EWCA Crim 143; [2011] 2 Cr. App. R. 7, it was said that judges asked to exercise their discretion to make restraint and receivership orders should bear in mind the draconian consequences of such orders, albeit of course applying the legislation

How do the CPS Decide if they will Charge a Suspect?

Sun, 26 Jan 2025 11:45:52 GMT

The Code for Crown Prosecutors is a public document issued by the Director of Public Prosecutions (DPP) . It sets out the principles that Crown Prosecutors must follow when deciding whether to charge a suspect and proceed with a prosecution. The Crown Prosecution Service (CPS) applies this code to ensure fair and consistent decision-making in criminal cases.

When deciding whether to charge a suspect, prosecutors apply the Full Code Test , which consists of two key stages:

Evidential Stage – The prosecutor must determine whether there is sufficient evidence to provide a realistic prospect of conviction . This means:

The evidence must be admissible in court.
The evidence must be reliable and credible .
There must be no other material that undermines the case .

Public Interest Stage – If the evidential test is met, the prosecutor must then consider whether a prosecution is in the public interest . Factors include:

The seriousness of the offence.
The impact on the victim.
Whether prosecution is proportionate to the circumstances.

In cases where a suspect poses a serious risk but the evidence is still being gathered, prosecutors may apply the Threshold Test . This allows a suspect to be charged if:

There are reasonable grounds to believe further evidence will become available.
The suspect is likely to commit further offences or fail to appear in court .

It is important to ensure the CPS are in possession of information which supports the decision not to charge a suspect. This is known as Pre-charge engagement, this is a voluntary process that allows suspects, their legal representatives, and investigators to communicate before formal charges are brought . It takes place after the first police interview under caution but before a charging decision is made by the Crown Prosecution Service (CPS) .

The process aims to:

Clarify facts and assist investigators in understanding the case.
Identify new lines of enquiry that could support or challenge the allegations.
Allow suspects to provide evidence that may influence the charging decision.
Encourage early resolution of cases, potentially avoiding unnecessary prosecutions.

Changes to legal aid funding in October 2022 expanded the scope of pre-charge engagement, allowing legal representatives to claim for preparatory work even if no formal agreement is reached. This ensures suspects receive proper legal advice before engaging with investigators.

Interpol Red Notices and Challenges

Sun, 26 Jan 2025 11:39:12 GMT

A Red Notice provides a means of streamlining co-operation between the 196 member countries of INTERPOL. It is not an “international arrest warrant”, and in many countries (including the UK) it does not, of itself, provide a lawful basis for an arrest. The number of member countries has steadily increased since its introduction.

A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. It is based on an arrest warrant or court order issued by the judicial authorities in the requesting country. Member countries apply their own laws in deciding whether to arrest a person.

It contains two main types of information:

Information to identify the wanted person, such as their name, date of birth, nationality, hair and eye colour, photographs and fingerprints if available.

Information related to the crime they are wanted for, which can typically be murder, rape, child abuse or armed robbery.

A Red Notice is issued by Interpol at the request of a member state's National Central Bureau—such as SOCA in the UK—or a sub-bureau within the UK’s Crown Dependencies. Its purpose is to assist in locating and arresting wanted individuals, either for extradition or other lawful proceedings. In effect, a Red Notice serves as an international request for member states to detain a suspect if they come to the attention of law enforcement within that jurisdiction.

Bringing a challenge against a Red Notice will often be limited to seeking removal from the public list in the first instance. This is governed by the various articles which apply to Interpol.

Article 83 sets out the specific criteria for ‘publishing’ Red notices, this includes prohibition on publication if:

a) the offence in question raises ‘controversial issues relating to behavioural or cultural norms’;

b) the offence originates from ‘a violation of laws or regulations of an administrative nature or deriving from private disputes …’;

c) penalty threshold – the conduct constituting the offence is punishable by at least two years ‘deprivation of liberty’ or, in conviction cases, the subject is to serve at least six months of imprisonment.

Article 76 grants Interpol the discretion to withhold the publication of a Red Notice if doing so could "prejudice the Organization’s image or interests." This provision is particularly relevant in cases where the request originates from a state with a questionable human rights record. In such situations, Article 76 may be applied alongside Article 3 of Interpol’s Constitution, as well as Articles 11 and 12 (discussed below), to ensure compliance with international standards and safeguard against potential misuse.

Article 11 stipulates that Interpol’s data processing must be authorised in accordance with the applicable laws of the requesting state’s National Central Bureau (NCB). Additionally, it requires compliance with the Universal Declaration of Human Rights, as referenced in Article 2 of Interpol’s Constitution.

Article 12 further mandates that the information processed by Interpol must be “accurate, relevant, not excessive [in relation to purpose], and up to date.” This reinforces the necessity of obtaining current and reliable information from the requesting state, which may at times conflict with data already supplied to Interpol. It is also important to note that Interpol does not own the information it receives; ownership remains with the relevant state or NCB.

What Can I Take into Prison?

Wed, 15 Jan 2025 20:58:36 GMT

Entering prison can be an overwhelming experience, and knowing what you are allowed to bring with you can help ease the transition. UK prisons have strict regulations on personal belongings to ensure security and order within the facility. Here’s a breakdown of what you can take into prison.

Essential Items Allowed in UK Prisons

While rules may vary slightly between different prisons, the following items are generally permitted:

Clothing : You can bring a limited amount of personal clothing, including underwear, socks, and a dressing gown. Some prisons allow up to 15 upper garments and 9 lower garments , but restrictions apply to hooded clothing and sports jerseys.
Footwear : Most prisons allow up to three pairs of shoes or trainers .
Toiletries : Basic hygiene items such as a toothbrush, toothpaste, deodorant (non-aerosol), and soap are permitted.
Personal Items : You may bring an address book, envelopes, writing paper, pens, and stamps for correspondence.
Books and Puzzles : Reading materials, Sudoku, and crossword puzzles are allowed to help pass the time.
Photographs : Personal photos of loved ones can be taken into prison.
Money : You can bring cash, which will be deposited into your prison account for purchases within the facility.

Items That Are Strictly Prohibited

Certain items are banned to maintain security and prevent contraband from entering the prison:

Aerosol sprays and alcohol-based toiletries.
Hooded clothing and camouflage outfits.
Smartphones, laptops, and internet-enabled devices .
Weapons, drugs, and alcohol .
Football shirts and military uniforms .

Special Considerations

Medical Items : If you require medication or medical equipment, it must be approved by the prison healthcare team.
Religious and Cultural Items : Some prisons allow items such as rosary beads or prayer mats , subject to approval.
Entertainment Devices : Some prisons permit small radios or CD players , but restrictions apply.

Failure to Provide Driver Information (Section 172)

Tue, 31 Dec 2024 01:00:00 GMT

What can you do if you've been charged with failing to provide information about a driver?

Introduction

It is a Criminal Offence not to provide information pursuant to a request under Section 172 of the Road Traffic Act, 1988. This charge normally arises when an individual fails to respond to information about a driver who has triggered a speed camera or was involved in another Road Traffic Offence.

The purpose of the Section 172 offence is to ensure that those who are caught speeding respond to the notice, hence why it is punishable with 6 points rather than the usual 3 for a speeding offence.

The offence and the relevant defences are relatively poorly understood, with a lack of consistency across Magistrates Courts. It is therefore important to secure legal representation at an early stage, especially with the strict time limits that apply.

How are these offences prosecuted?

Section 172 applies to requests to provide information following a speeding offence has been committed. Subsection 2 provides for the requirement to provide information in two separate situations:

The person keeping the vehicle shall give such information as to the identity of the driver as he may required to give by or on behalf of a chief officer of police or the Chief Constable of the British Transport Police Force, and

Any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.

The power to request this information is delegated to numerous departments across the UK. In order to prove their case, the Prosecution simply need to show that the request for information was sent by recorded first class post. there is an assumption that it has been received that has to be disproved. This request will be recorded on the Police Computer system and there is a standard set of evidence that will be served against any Defendant.

Where it can be shown that the request was not sent in line with normal post, there is no offence committed and it is not necessary to rely upon a defence (Krishevsky v. DPP 178 J.P. 369, DC). This means it can be very difficult to defend against the charge.

There is an obligation to respond to the request for information within the time and manner specified within the notice (DPP v Broomfield [2002] EWHC 1962). For example, the request is for a response in writing, if there were to be a phone call in response rather than in writing then an offence is still committed.

The information to be provided is that which the Defendant can reasonably be expected to provide. These cases are either prosecuted by the Crown Prosecution Service or by the Police Service themselves. If prosecuted by the Police Service there are often disclosure failings which can result in the Prosecution being stayed by the Court or abandoned by the Prosecution.

Defences

There are two defences that an individual can rely upon in respect of the commission of an alleged offence:

It was not reasonably practicable for the Defendant to know about the existence of the request;
The Defendant did not know, and could not with reasonable diligence find out, who the driver was.

A Defendant must not necessarily make themselves available at the address the vehicle is registered to, although not doing so makes it more difficult to demonstrate the defence is made out (R. (Purnell) v. Snaresbrook Crown Court [2011] R.T.R. 35, DC).

It will be for the Defendant to show that it was not reasonably practicable for them to have become aware of the notice (Whiteside v. DPP 176 J.P. 103, DC). The test of reasonable practicability is a matter for the Magistrates to determine. This defence is predominantly used where there are pre-existing issues with the postal service at the address to which the request for information has allegedly been sent.

Under section 7 of the Interpretation Act 1978, service is effected by properly addressing, preparing and post a letter containing a document and is assumed to have taken place unless the contrary is proved. Part 4.1 of the Criminal Procedure Rules, 2015 provides that the document is deemed to be served within two working days of being posted.

The second defence, is simply for the Magistrates to determine whether or not reasonable diligence was used and whether or not the Defendant knew who the driver was. This is determined on a fact by fact basis and one which should be discussed.

In respect of the offence, the sentence imposed is a maximum financial penalty of £1,000 in addition to 6 penalty points, there may also be cost consequences. It is possible for a director to be prosecuted as well as a Company if they can be shown to be culpable. The director may then receive a total of 6 penalty points in addition to a financial penalty to a maximum of £1,000.

Contact Rhys now if you have received one of these notices or are being prosecuted for failure to respond. Under the Single Justice Procedure Notice provisions (SJPN) strict time limits apply for responding to these notices.

Failing to File Company Accounts - A Criminal Offence?

Sat, 14 Dec 2024 11:41:36 GMT

Complying with the Companies Act and the obligations can lead to serious sanctions, including criminal prosecution

The obligations placed on a Company, and by extension its directors, will differ depending on the size of the corporation. For example, in respect of a micro-entity, the requirements of Section 443A apply:

This requires that the directors of a company that qualifies as a micro-entity in relation to a financial year, m ust deliver to the registrar a copy of the company’s annual accounts, and may also deliver to the registrar a copy of the directors’ report.

Section 1128 restates section 731(2) to (4) of the 1985 Act which had been repealed. It sets out time limits for summary proceedings. The prosecution must be commenced within three years of the offence being committed, and within one year of the prosecuting authorities receiving sufficient evidence to justify the prosecution.

Section 451 governs the actual offences in respect of a default in filing accounts and reports. If the requirements of section 441 (duty to file accounts and reports) are not complied with in relation to a company's accounts and reports for a financial year before the end of the period for filing those accounts and reports, every person who immediately before the end of that period was a director of the company commits an offence.

It is a defence for a person charged with such an offence to prove that he took all reasonable steps for securing that those requirements would be complied with before the end of that period. However, it is not a defence to prove that the documents in question were not in fact prepared.

An information relating to an offence under the Companies Acts that is triable by a magistrates' court in England and Wales may be so tried if it is laid at any time within three years after the commission of the offence, and within twelve months after the date on which evidence sufficient in the opinion of the Director of Public Prosecutions or the Secretary of State (as the case may be) to justify the proceedings comes to his knowledge.

Whilst the offences are limited to summary conviction, it can still result in a substantial financial penalty and continuing default for the period of non-compliance.

Challenging Private Hire Licence Decisions made by TFL

Thu, 21 Nov 2024 11:20:41 GMT

Rhys is an experienced barrister in dealing with appeals against decisions made by TfL, this includes representing drivers and Transport for London

Challenging a Decision by TfL relating to Public Hire Licences

The regulation of Private Hire Vehicles in London is governed by Transport for London. This means that TfL are responsible for decisions for new licences, renewals of licences and also can make decisions to suspend or revoke licences.

The only way to challenge an adverse decision is to seek to appeal the case before the Magistrates Court. Having the benefit of experienced legal representation, in particular an individual who has acted on behalf of TfL, can make all the difference.

It is important to lodge an appeal within 21 days of the date of the decision made by TfL, as well as engaging with TfL’s correspondence prior to that date. Once the appeal is lodged, a bundle will be compiled, engaging with TfL and ensuring they have the benefit of all material at this stage is vital.

The approach the court will take is set out in a case known as Hope and Glory, this gave a five stage approach for any appeal:

a. The Court will note the decision of the licensing sub-committee;

b. The decision will not be reversed lightly;

c. It will only be reversed if the Court is satisfied it was wrong;

d. The decision will be based on evidence (and the driver can give evidence);

e. The decision will be made in line with the relevant policy documents.

The key policy document for TfL is the Taxi and PHV Driver Policy Policies, advice and guidance on licensing taxi and private vehicle drivers in London.

This document is available at : https://content.tfl.gov.uk/taxi-and-private-hire-policy-july-2023.pdf

One of the key questions when it comes to determining an appeal, is whether or not the driver is a Fit and Proper Person. There is no hard and fast rule for determining this but the following features are normally considered:

· Any criminal convictions or cautions the driver has or has had – there are particular considerations for specific types of offences (and timescales for an application to be allowed)

· The total number of points endorsed on an individual’s driving licence

· The driver’s history of behaviour in relation to other road users and passengers in their vehicle

· How long the driver has held their driving licence (only normally applies to new applicants)

· The driver’s mental and physical fitness

· Any other concerns about the driver’s integrity, for example instances of dishonesty.

One particular challenge is where TfL reach a decision on the basis of complaints. It is well known that passengers will make false claims to seek refunds and will make fake complaints. This evidence is admissible but it is important to be able to put together rebuttal evidence and to explain the number of complaints.

It is also important to ensure that a true picture of a driver’s reputation and their review scores, as well as evidence that the scores are above average.

Obtaining legal representation at an early stage is vital to ensure proceedings proceed swiftly.

Crypto Currency - Forfeiture and Detention

Tue, 05 Nov 2024 16:29:49 GMT

The Economic Crime and Corporate Transparency Act 2023 created new provisions to deal with the seizure and confiscation of suspected criminal Cryptoassets. There have been further developments which have led to the creation of new Magistrates Court Rules in respect of civil proceedings relating to Cryptoassets. This will no doubt extend to Bitcoin which has presented a challenge for enforcement bodies.

Introduction

The Cryptoasset provisions in the Act came into force on 26 April 2024. The Magistrates’ Courts Rules take effect on 7 ^th November and the Crown Court Rules (which regulate processes on appeal) take effect from 4th December 2024.

Whilst these are new provisions, they very closely reflect the existing procedural rules which have governed applications for Cash Forfeiture and Account Freezing Orders. Quentin and Rhys have regularly appeared to represent both Respondents and Interested Parties in respect of these applications.

The Definition of Crypto and Related Assets

Cryptoassets are defined as “a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology” as per Section 84A(1) Proceeds of Crime Act 2002. The provisions of seizure and confiscation will extend to Cryptoasset-related items which are defined in Section 47C(5B) Proceeds of Crime Act 2002. These related items are a new class of recoverable property and will include electronic hardware which provide access to crypto-wallets or currencies.

Schedule 8 of Economic Crime and Corporate Transparency Act 2023 amends Part 2 of the Proceeds of Crime Act 2002 to allow search and seizure powers for Cryptoassets and Cryptoasset-related items. These provisions are contained in Section 47A onwards. There are also further powers introduced in respect of enforcement proceedings contained in Section 67ZA onwards.

Searches

Section 303Z23 of the Proceeds of Crime Act 2002 allows for an application to be made to the Magistrates Court for a search to be carried out for Cryptoassets pursuant to Section 303Z21. These Cryptoassets must meet the definition for POCA, namely that the assets must be likely to assist in the seizure of criminal property (i.e. recoverable property or intended for use in unlawful conduct).

Seizure

Once those carrying out a search have seized (theoretically by transferring Cryptoassets into an enforcement controlled crypto wallet) an application must be made to hold the items. Detention is permitted for a period of 48 hours (as with existing cash seizure legislation) but thereafter an application must be made to the Magistrates Court for a longer period.

Detention

For Cryptoasset-related items which have been seized, a further period of detention can be authorised pursuant to Section 303Z28 POCA. This can be for a maximum period of 6 months on each application up to a total of 2 years beginning with the date of the first order. These time periods reflect the pre-existing legislation for cash seizure and account freezing orders. The sole exception is that the period may be extended up to 3 years from the first application, but only if there is a request for assistance from a jurisdiction outside England and Wales.

The Court hearing the application may make an order if satisfied, in relation to the item, that there are reasonable grounds for suspecting that it is a Cryptoasset-related item, and its continued detention is justified. This follows the same definition for search namely that the Cryptoasset-related item is likely to assist in the seizure of criminal property. By definition, this will extend to the seizure of crypto-assets or cryptocurrency.

It remains a requirement that the person from whom the asset was seized is notified of the hearing, unless the item was not seized from a person. The application must be made in writing and in the correct form.

There are very similar provisions for the Cryptoassets themselves which are governed by Section 303Z32 of POCA. The Court may make an order for the detention of Cryptoassets there are reasonable grounds for suspecting that the assets are recoverable property or intended by any person for use in unlawful conduct.

There must be a hearing that is not earlier than 7 days after the notification of the date of the hearing to the Applicant.

Applying to Release Cryptoassets and Related Items

The person from whom the property was seized may apply to a magistrates’ court for release of Cryptoassets and related items under section 303Z34 POCA. The court may order the release of the assets if satisfied that the conditions for the detention of the property are no longer met in relation to the property to be released.

Freezing Order Applications

A Freezing Order Application arise where it has been possible to identify the holder or administrator of the asset, for example the firmware provider for the Crypto-Wallet. Section 303Z3711 allows for an order to be made where the Court satisfied that there are reasonable grounds for suspecting that some or all of the Cryptoassets held in the crypto wallet are recoverable property, or are intended by any person for use in unlawful conduct..

An application for a crypto wallet freezing order may be made without notice if the circumstances of the case are such that notice of the application would prejudice the taking of any steps under this Part to forfeit Cryptoassets that are recoverable property or intended by any person for use in unlawful conduct

The same time limit for a Freezing Order applies as to applications for detention of assets.

Forfeiture Provisions

Once an application has been made for a Freezing Order or for Seizure, an application can be made for a Forfeiture Order. Sections 303Z41 to 303Z53 set out the relevant forfeiture provisions.

Upon the application being made, a copy of the forfeiture application must be served on every person to whom a copy of a previous order has been provided and to any other person identified as being affected by the application. The Court must then fix a directions hearing and give directions at such a hearing for the exchange of evidence in the event the application is contested.

In order to serve an application, the Applicant must do one of the following:

- Posting to the registered or last known address of the Respondent or Interested Party;

- If a Party has confirmed they are willing to accept electronic service, then service can be effected by email;

- Where there is a good reason to authorise the giving of a document by a method or at a place not otherwise permitted by the Rules, the court may make an order permitting the giving of a document by an alternative method or at an alternative place.

In the event no party attends to oppose the forfeiture, the Court may make a determination in respect of the application at the directions hearing. At a final hearing, the Court will order forfeiture if they are satisfied on the balance of probabilities that the Cryptoassets are recoverable property or intended for use in unlawful conduct.

Where Cryptoassets are ordered to be forfeited, the service provider that administers the Crypto Wallet must transfer the Cryptoassets into a crypto wallet nominated by an enforcement officer, and immediately after the transfer has been made, the freezing order ceases to have effect. Cryptoassets that have been detained may not be released until any appeal is concluded.

Appeals

The provisions which govern appeal mean that the route of appeal is to the Crown Court. The application must be made in writing and within 21 days of the date of the order. The hearing in the Crown Court is de novo, this means it is a re-hearing and will require fresh directions.

Where the court makes a forfeiture order and an appeal is lodged against it, the applicant in the forfeiture proceedings may make an application to a magistrates’ court for the freezing order to continue.

Speeding - What do the Prosecution Need to Prove?

Mon, 04 Nov 2024 08:15:38 GMT

The question people regularly ask is “how do I get away with speeding”. The question they should be asking is what do the Police or Prosecution have to prove in order for me to be convicted of speeding?

The offence of speeding is much more complex than people generally think. The process is extremely stream-lined. The camera captures what is alleged to be a vehicle travelling at excess speed and a notice of intended prosecution is sent to the registered keeper. Ordinarily, this is received, the driver nominates themselves (or the person who was driving) and a Conditional Penalty Offer is generated. This involves the payment of £100 and the acceptance of 3 penalty points, or a speed awareness course.

However, quite often, people may be missing out on being acquitted altogether of speeding. There are a number of things that can be explored even at this stage.

First Steps

The first question is whether or not the request for driver details has been sent within 14 days, if it hasn’t then no action can be taken against the driver. This is a firm requirement in Section 1 of the Road Traffic Offenders Act 1988.

It is essential that the request for driver details is responded to, a failure to do so is a breach of Section 172 of the Road Traffic Act 1988 and can result in the imposition of six penalty points.

It is from here that matters become much more complicated and legal representation can be of a great deal of assistance. Rhys is regularly instructed after drivers have received a request for driver details and raises technical queries which often result in the proceedings being discontinued.

The following are some regular examples

Was there sufficient signage?

This is quite a specific question to the particular offence that is alleged to have been committed. There is a requirement, for certain speed limits, that there be both entry and exit signs as well as repeaters placed at an appropriate interval (normally 200m) on the piece of road. If this has not been done – or more importantly if the prosecution cannot prove it has been done – then there will be no conviction.

Was the device working?

This is an area where expert evidence may sometimes be required in order to establish whether the device was correctly calibrated, but also whether the base-line measurement was correctly calculated and input. Rhys works closely with a number of road traffic experts who can explore this issue.

Was the order legally in place?

Just because there’s a speed limit, doesn’t necessarily mean it was lawfully imposed or that the proper Traffic Order has been relied upon. This can often result in acquittals.

So What should you do if you’re thinking about challenging a speeding offence?

As set out previously, it is essential that the recipient of the request for driver details provides them otherwise a further offence is committed. However, through the use of expert legal representation, correspondence can be drafted to explore some of the issues highlighted in this article to try and dissuade the police from prosecution.

In the event a Conditional Penalty Offer is not accepted, a Single Justice Procedure process is issued and a requisition is completed. This means the offence is charged, for the majority of motoring offences this must be charged within six months otherwise they cannot be proceeded with.

The Trial Process

This then commences the trial process during which, with the help of legal representation, challenges can be made as to whether the prosecution can prove their case and to seek key disclosure which will undermine the case against a driver.

Cell Site - Evidence and Limitations

Tue, 29 Oct 2024 13:35:55 GMT

Mobile Phone evidence is regularly relied upon in criminal prosecutions. As well as being used to show the nature of contact, it can be used to locate the sim card or the device.

Cell-site Evidence can be extremely damaging, ordinarily in cases involving drugs supply. However, the evidence is not as strong as people tend to believe. The evidence is usually obtained from the call data records (CDRs) of a device that is attributed to a user. The CDR will show which cell a device is connected to, a cell may be a large mast or it may simply be a smaller mast attached to the side of a building.

Whenever a mobile phone connects to a network, it will create a record of the cell it connected to. This will include a phone call, a text message or a data session. This means that a phone number can be mapped. When the cell connects, it will also create a record of which azimuth it was connected to. Each cell has three azimuths, this means that a 120 degree direction can be ascertained from the cell.

However, there are various limitations on this approach. A mobile phone will not necessarily to the cell which is closest geographically. It will depend on many factors, including but not limited to the following:

The network;
The number of other individuals utilising a cell;
The topography (i.e. the structure of the land).

CDRs can also be used to set out if SIM swapping has taken place, this is where the holder of a SIM card is moving their card between different phones. This is often used to ascertain whether attempts are being made to hide a phone or to demonstrate that an individual is using a SIM card in their personal phone and another phone.

Radio Frequency Propagation Survey

It is not possible from cell-site to state that a specific cell will cover an area, in order to do this a Radio Frequency Propagation Survey must be carried out. This means visiting the site and measuring which specific cell serves the area. This means that a map can be completed showing which mast serves the relevant location.

The main purposes of a RFPS are as follows:

Seeking to establish an alibi location, i.e. explaining that a phone could have been at a different location to that where an offence is alleged to have occurred;
To challenge the assertion that a phone was present at the scene of an alleged offence i.e. whether the relevant cell does serve that location;
To challenge the bed and breakfast, i.e. establishing if a so-called “bed and breakfast cell” does indeed serve the relevant address.

Bed and Breakfast Cells

You may have heard of bed and breakfast cells, this is where an analyst will look at where a phone us used first in the morning and last at night. This is used to suggest that this location is where an individual resides.

Co-Location

Often, an individual will accept they have a personal number but will deny attribution of another phone. Co-Location means that the devices can be mapped together to show how often they use the same cell, or alternatively to show the devices travelling to and from the same location. This can be compelling evidence to attribute devices.

ANPR Evidence

Automatic Number Plate Recognition evidence can be used alongside cell-site, this is to show the movement of a vehicle at the same time as a mobile phone device. Again, this can be compelling evidence to paint a picture of movement location. ANPR is evidence of a vehicle being triggered at different sites on the road network.

What Can't Cell-Site tell us?

It cannot tell us precisely where a device is, it can simply show us the general area or provide an inferred route;
It cannot tell us who is using a device;
The CDR will be linked to an IMEI ordinarily, so it may only show the sim-card rather than the specific device;
It cannot tell us what was being said during a phone call.

Whilst not a "cell-site analyst", Rhys is regularly instructed in cases involving complex cell-site data and is experienced in challenging the conclusions made by police analysts.

Increased Sentencing Powers in the Magistrates Court

Wed, 23 Oct 2024 19:57:45 GMT

It was recently announced that the maximum sentence, for a single either way offence, would be increased to 12 months in the Magistrates Court

There are three different types of offence:

Summary Only - this can only be dealt with by the Magistrates Court save in particular circumstances. The maximum sentence is always 6 months (and the Magistrates Court cannot run summary only sentences consecutively to one another);
Either Way - these offences can be dealt with either in the Magistrates Court or the Crown Court. The Magistrates Court will make a determination as to whether their sentencing powers are sufficient (allocation) and the Defendant will be asked if they consent to summary trial (trial in the Magistrates Court) or wish to elect a Crown Court trial;
Indictable Only - these offences can only be tried in the Crown Court, a Defendant will still attend the Magistrates Court for a first appearance and to be sent to the Crown Court for a Plea and Trial Preparation Hearing ("PTPH").

It has been confirmed that the Magistrates Court will now be able to pass a sentence of 12 months imprisonment for a single either way offence. Prior to this, the maximum sentence was 6 months although the Magistrates Court was able to impose two sentences of a maximum of six months to run consecutively where both offences are either way. This will remain the maximum period for two offences, it simply means that the maximum sentence for a single offence has been increased.

This will have two practical effects:

The maximum sentence is increased, as such there is an increased sentencing range for a single either way offence in the Magistrates Court;
Fewer offences will be "sent" by the Magistrates Court - as their sentencing powers have been increased there is a higher bar for allocation to result in a case being sent to the Crown Court.

There are a number of things that will not change:

The maximum sentence for one or more summary offence is 6 months, these cannot be run consecutively to one another;
The maximum total sentence (regardless of the number of offences) remains 12 months in the Magistrates Court, this is unchanged;
The Magistrates Court are still not permitted to deal with indictable only offences.

This is not the first time the sentencing powers of the Magistrates Court has been increased. The powers were previously increased between 2nd May 2022 and 30th March 2023.

The increased sentencing powers will take effect from 18th November 2024. The relevant date is the date of the offence, rather than the date of conviction.

The relevant custodial sentencing powers for a single either-way offence are as follows for either way offences:

Where the offence was committed prior to 2 May 2022 – the maximum sentence is six months
Where the offence was committed on or after 2 May 2022 and the conviction was before 30 March 2023 (the initial implementation period) – the maximum sentence is 12 months.
Where the conviction was on or after 30 March 2023 and before 18 November 2024 (powers turned off) – the maximum sentence is six months
Where the conviction is on or after 18 November 2024 (powers turned on) – the maximum sentence will be 12 months’ imprisonment.

Obtaining a Writ of Habeas Corpus

Mon, 21 Oct 2024 07:35:10 GMT

A step by step guide regarding how to obtain a Writ of Habeas Corpus where an individual has been unlawfully detained.

Habeas corpus originally stems from the Assize of Clarendon of 1166, a re-issuance of rights during the reign of Henry II of England in the 12th century. The foundations for Habeas Corpus are "wrongly thought" to have originated in Magna Carta, but in fact predates it.

The concept retains a practical use in today’s legal system, in particular due to the rise in errors in calculating release dates which leads to unlawful detention. The process is complex and must be carefully followed.

The approach differs as to whether the application is being made during Court hours. The starting point is to contact the Clerk of the Rules, this can be done by contacting the Court directly. Outside of Court hours, PD12E provides contact details to liaise with the duty clerk - 020 7947 6260. Once this step has been taken, the out of hours form must be completed:

https://www.gov.uk/government/publications/form-kbd-oha-out-of-hours-application-kings-bench-division

The substance of the application must be set out in a Part 8 Claim Form. CPR 87 governs applications for a Writ of Habeas Corpus. The Claim Form should summarise the basis of the claim, the background and confirm that human rights are engaged.

An application for a Writ of Habeas Corpus must be supported by a signed witness statement, although the CPR suggests this should be completed by the Claimant that is unlikely to be possible given they will theoretically be detained. The witness statement should do the following:

state that the application is made at the instance of the person being detained;
set out the nature of the detention;
must state the reason why the detained person is unable to make the witness statement or affidavit.

The Application should be filed through immediates email address ( immediates@administrativecourtoffice.justice.gov.uk ) and accompanied by the appropriate fee (£108). In the event the application is made out of hours, it should be sent directly to the Duty Clerk ( DutyClerkKB@justice.gov.uk ).

The witness statement ought to be supported by the following:

A chronology detailing the background to the Application;
Any exhibits which support of the contents of the witness statement.

Once the application has been made, ordinarily it will be considered by the Single Judge and then a short telephone hearing held. The Judge may make the following orders:

make an order for the issue of the writ;
adjourn the application to a hearing;
direct that the application be considered by a Divisional Court of the King’s Bench Division;
direct that the application continues as an application for permission to apply for judicial review;
give such other directions for resolution of the application as may be appropriate; or
dismiss the application.

In the event the application is granted, it must then be served on the Respondent (the Place of Detention) and Interested Party (The Remanding Court / Body).

What do I do if I have had items seized?

Fri, 04 Oct 2024 13:34:10 GMT

It is well known that cash can be seized and accounts can be frozen. However, it is increasingly common that the authorities are seizing items such as watches and jewellery.

The power to seize items arises from the Proceeds of Crime Act 2002. Items of property of value are described in the act as “listed assets”.

A “listed asset” is defined in POCA Section 303B as being:

1. precious metals;

2. precious stones;

3. watches;

4. artistic works;

5. face-value vouchers;

6. postage stamps.

The power to seize these items is governed by Section 303J. This allows a relevant officer to seize items where there are reasonable grounds to suspect a listed asset (as set out above) is recoverable property or is intended for use in unlawful conduct.

Recoverable property is defined in Section 242 of POCA. This is where the item has been received through unlawful conduct i.e. criminal conduct.

Once the item is seized, an application will be made to the Magistrates Court for detention of the item. This is for a maximum of 6 months after which there will need to be a further application to extend. The maximum length of total detention is two years, after which the items must be returned or an application for forfeiture made. A Court may only order further detention where there are reasonable grounds to suspect the listed asset is recoverable property.

An application for forfeiture will ordinarily be a contested hearing where the Officer gives evidence. These can be opposed by anybody with a proprietary interest in the asset that has been seized.

In order to forfeit goods, the Court must be satisfied that it is more likely than not that the goods are recoverable property i.e. the proceeds of crime or intended for use in crime.

The standard of proof is the balance of probabilities, this means that these cases can be hard to contest. It is vital to put together evidence at an early stage and to liaise with the investigating authorities, as this can be helpful to support the suggestion that the evidential standard has not been reached. It is also important to prepare witness statements and exhibits to counter the allegations made by the Applicant.

Single Justice Procedure Notice – Railways and Regulations

Sun, 01 Sep 2024 11:06:28 GMT

Headlines were recently made as a result of a ruling from the Chief Magistrate which meant that thousands of prosecutions for fare evasion would be overturned.

In April 2015, a new procedure was introduced for charging and prosecuting individuals. This was known as the Single Justice Procedure. Section 29 of the Criminal Justice Act 2003 provided that where an individual was charged, they could consent to being dealt with pursuant to the Single Justice Procedure.

Section 16A of the Magistrates Court Act 1980 sets out the procedure, it means that a single magistrate will consider proceedings simply on the papers – they will not hold a hearing. This has attracted substantial criticism as it means that proceedings are held in private, rather than being in public court rooms.

One of the main difficulties with the procedure, is that it allows for it to continue in the Defendant’s absence as long as the Prosecution can prove that the charge and requisition were served on the Defendant. This means sending the paperwork to the Defendant’s last known address.

The Single Justice Procedure may only be applied to a summary offence (i.e. those that can only be dealt with by the Magistrates Court) and that a sentence of imprisonment cannot be imposed for the offence.

These proceedings can be particularly difficult in cases where an individual may receive penalty points as part of their sentence. This can mean that individuals receive penalty points without realising as a result of postal failings or having moved address.

The decision made in the case known as Northern Trains Limited related to offences prosecuted pursuant to Section 5 of the Regulations of Railways Act 1889. This is a summary non-imprisonable offence. However, where proceedings are commenced by a body which is not the CPS – in this case a licensed Railways Operator – there are limits on what offences can be prosecuted. It emerged during analysis that the Section 5 offences are not defined as “Railway Offences” in the legislation which defines what offences can be prosecuted by Railway Operators.

This means that any prosecution for travelling without a valid ticket may well be unlawful and capable of being over-turned. The proceedings will now be dealt with what is known as Section 142 of the Magistrates Court Act 1980 and be re-opened and dismissed.

Early Release Provisions – Who and When

Fri, 30 Aug 2024 10:37:17 GMT

The government have released proposals and statutory legislation which will mean that certain prisoners are released at the 40% stage of their sentence rather than 50%.

It is important to be aware that this will only apply to prisoners who are serving standard determinate sentences. This means that those defendants who received sentences for violent offences over 4 years, which meant that they were due to serve two thirds, will not be impacted by the reduced term. Since the legislation was published, it has become clear that the maximum sentence to which the 40% release date will apply is 5 years imprisonment, regardless of the structure of the sentence.

In addition, there are a number of offences which are excluded, predominantly those which are considered to be terror offences or “domestic abuse” offences which are committed in relationships:

- stalking offences

- controlling or coercive behaviours in an intimate or family relationship

- non-fatal strangulation and suffocation

- breach of restraining order, non-molestation order, and domestic abuse protection order

It is unclear exactly how prisoners will be monitored upon their release, it is likely that we will see a combination of supervision and electronically monitored curfews put in place.

The practical imposition of the reduction was thought to be relatively limited, this is because it was said to only apply to prisoners who are currently past the 40% point of their sentence (but pre-release). For example, if a prisoner has currently served 6 months of an 18 month sentence – where they would automatically be released after 9 months – they will not be considered eligible under the scheme. This was according to the comments of Shabana Mahmood on 12th July 2024.

However, when one considers the draft legislation it is clear that the reduction will apply to any individual receiving a determinate sentence of fewer than 5 years from 11th September 2024. Furthermore, it appears that the 40% release date will apply to any individual already serving a sentence from 22nd October 2024.

These changes have been made as a result of the prison estate in England and Wales reaching capacity. This has already led to an increased focus on release on Home Detention Curfew (HDC). This is a release provision for offenders serving a sentence of at least 12 weeks in prison (i.e. a sentence of greater than 24 months). In order to be eligible for release under HDC, the offender must serve at least a quarter of their sentence, or 28 days, whichever is longer, before being released. The maximum period that someone can be released on HDC for is 180 days, so someone with a sentence of at least two years (i.e. serving at least a quarter – six months) but less than four years could be released up to 180 days before the halfway point of their sentence.

The legislation is currently in draft form and is subject to debate by the Houses of Parliament and House of Lords. It may well be that the legislation is subject to further amendment or clarification in due course. Shabana Mahmood promised MPs she would review the changes in 18 months’ time.

Joey Barton - Offensive or Illegal?

Thu, 29 Aug 2024 08:52:01 GMT

Joey Barton appeared at Manchester Crown Court, having elected a Crown Court trial before a jury, in respect of a charge of Malicious Communications

Joey Barton’s legal problems have continued to grow, the High Court recently over-turned a decision by a District Judge to dismiss a prosecution for assault (although that has resolved following the discontinuance of proceedings). He has since been charged with conveying an indecent or offensive message, for the purpose of causing distress or anxiety, between 3 and 8 January 2024. The charge has seemingly been narrowed since the case arrived at the Crown Court as the original announcement from Greater Manchester Police stated the period was from 1 to 18 January 2024.

This relates to a series of tweets made about the former Chelsea and England footballer Eni Aluko.

Mr Barton appeared at Manchester Crown Court on 27 August 2024 for what is known as a Plea and Trial Preparation Hearing. This is simply where a Defendant enters a Not Guilty plea and case management directions are made. There will have been directions made for the Prosecution to disclose material and for Mr Barton to provide what is known as a defence statement (i.e. a description of why he is not guilty and what matters are in issue for trial).

The trial was, unusually for an offence of its type, fixed for trial on 19 May 2025. Whilst this may seem a lengthy delay, in reality it is far sooner than most trials are being fixed where the Defendant is on bail.

There are two separate offences that Mr Barton could have been charged with.

The most straight forward would have been an offence of Section 127 Malicious Communications. This need only require that the message was grossly offensive, obscene or indecent and that at the time of sending, Mr Barton intended his message be grossly offensive to those to whom it related; or that he was aware at the time of sending that it might be taken to be so by a reasonable member of the public who read or saw it.

Instead, the Prosecution have charged Mr Barton with a Section 1 Malicious Communications Act offence. This requires the prosecution to prove, in terms of state of mind, that Mr Barton’s purpose, or one such purpose, is that the tweet should cause distress or anxiety to the recipient or to any other person to whom it is intended that the message or its contents or nature should be communicated.

Mr Barton has made reference previously to Human Rights protections, Article 10 of the European Convention on Human Rights ('ECHR') expressly protects speech that offends, shocks, and disturbs. It will likely be a matter left to the jury whether the tweets are viewed as unattractive or have gone too far such to be considered oppressive and unacceptable.

The first Tweet that the prosecution is understood to relate to read “How is she even talking about Men’s football. She can’t even kick a ball properly. Your coverage of the game EFC last night, took it to a new low. Eni Aluko and Lucy Ward, the Fred and Rose West of football commentary”.

ITV subsequently defended the commentary team at which point Mr Barton tweeted “On reflection, I feel I’ve been a tad harsh on Eni Aluko by comparing her to Rose West. Had a bit of time to consider the impact of my words…”

Mr Barton then said Ms Aluko was “clearly in the Joseph Stalin/Pol Pot category”, as she had “murdered” millions of football fans’ ears.

The trial is fixed for May 2025.

Huw Edwards - A Legal Discussion

Thu, 08 Aug 2024 07:12:19 GMT

Huw Edwards, former BBC Newsreader, has entered guilty pleas to three offences of Making Indecent Images of Children. But what does it mean and what happens next?

The body content of your post goes here. To edit this text, click on it and delete this default text and start typing your own or paste your own from a different source.

What do I do if I've missed a Hearing or if there is a Warrant?

Mon, 08 Jul 2024 14:53:56 GMT

In 2017, the law was changed which meant that the majority of suspects would be released under investigation rather than bailed. This has had unexpected consequences for defendants not attending their first hearing.

Many defendants will be charged with offences by post, rather than having to attend a police station and be informed of the charges in a more traditional way. This is called being charged by “postal requisition”. It means that the CPS or Police will lay a charge and the summons will be issued by way of requisition. If an individual has changed address whilst they have been under investigation, it may mean that they simply do not attend.

If an individual does not attend and it is a particularly serious offence, for example punishable with custody, the court will issue a warrant for their arrest. This can end up with the individual being arrested when they return from a holiday with no idea why.

If this happens, the first thing to be aware of is that you will be entitled to representation by the duty solicitor for a first hearing. They can be helpful in offering guidance.

It is not a breach of bail to fail to attend nor is it an offence.

The Bail Act 1976 only applies to those individuals who have already been before the Court and released on conditional bail. A failure to attend where an individual is on bail can be very serious, not only is it a breach of bail but it is also an additional offence to fail to attend without reasonable excuse.

If you miss a hearing, it is likely that a warrant will have been issued for your arrest, this can either mean that you are arrested. If this has happened, the first step is to write to the Court and explain the non-attendance. This may mean that you can ensure the warrant is withdrawn.

A lesser known step, if the Court refuse, is to commence judicial review proceedings. This is setting out that there would be civil proceedings challenging the Court’s decision, this can apply to both the Crown Court and the Magistrates Court. This is a very effective tool in having warrants withdrawn.

If you have become aware of a warrant, it is sensible to seek legal advice as a matter of urgency so that it can be resolved.

What is the Meaning of Drunk in Charge?

Thu, 04 Jul 2024 10:21:33 GMT

Where the CPS and Police cannot prove that someone was driving a vehicle, often the suspect will be charged with the offence of “drunk in charge”. But what does it mean to be "in charge" of a vehicle?

This offence can still result in a disqualification as the sentencing options are:

- A mandatory 10 penalty points or a discretionary driving disqualification

- A fine of up to £2500 and / or a range of sentencing options including community service or a prison sentence of up to 3 months

Section 5 of the Road Traffic Act 1988 states that the prosecution must prove:

- over the legal limit for alcohol (in the blood, urine or breath)

- and in charge of the vehicle;

- and the motor vehicle must be in a place to which the public has access i.e. a public road rather than a private road.

The meaning of “in charge” is not defined in legislation. The following have been held to be relevant factors when determining whether someone is in charge:

- whether and where he was in the vehicle or how far he was from it;

- what he was doing at the relevant time;

- whether he was in possession of a key that fitted the ignition;

- whether there was evidence of an intention to take or assert control of the car by driving or otherwise; and

- whether any person was in, at or near the vehicle and, if so, the like particulars in respect of that person.

The prosecution is not required to prove that the defendant was likely to drive whilst unfit or over the limit.

There is a statutory defence, which means that it applies in every case. As such, it will be a defence if the Defendant can prove it was more likely than not that they had no intention of driving whilst the level of alcohol in his breath, blood or urine remained above the prescribed limit.

This means that the Defendant will be acquitted if they prove on the balance of probabilities that at the material time the circumstances were such that there was no likelihood of his driving it so long as he remained unfit to drive through drink or drugs. “Likelihood” means real risk, a risk that ought not to be ignored. Thus the defendant must satisfy the court that there is no risk that he would drive while over the limit.

What is a Newton hearing?

Wed, 19 Jun 2024 13:19:44 GMT

A Newton hearing is something that you may hear your barrister or solicitor discuss, in the right case they can be extremely helpful

The general question asked is whether a Defendant should plead Guilty or Not Guilty. However, there is a third option which is often under-utilised.

This involves entering a guilty plea on a basis. This involves accepting guilt but doing so on limited facts. For example, in a case involving drugs supply a Defendant may wish to accept their guilt but state that they were acting under pressure. In a money laundering case, the Defendant may wish to limit the amount of money they were involved in.

This is a delicate exercise in negotiation to see how much can be accepted, it can result in years being taken off a sentence and in some cases the imposition of a suspended sentence rather than one of immediate custody.

A 'Newton' hearing is where evidence is called to make a factual determination for sentence. It will be ordered by a Judge where it is felt that a basis of plea makes a material difference to sentence. This means that there is a risk that any credit for a plea can be lost.

The general guidance where there is an unsuccessful newton hearing i.e. the Court finds against the Defendant, up to half of the credit for pleading guilty can be lost.

How Can I Appeal My Conviction?

Wed, 24 Jan 2024 09:38:38 GMT

When a trial goes against a Defendant, it is very important to immediately look at appealing the conviction. This can often be with fresh representation so that a new pair of eyes can consider the issues and answer any queries of the convicted person and their family.

In England and Wales, we have a one trial procedure. This means that we cannot appeal a conviction simply on the basis that the Jury came to the wrong conclusion or we simply disagree with their verdict. There must be grounds to appeal the conviction.

In the circumstances of there being a conviction, instructing new representation can often be very useful. The newly instructed legal team can obtain transcripts of the trial as well as being able to answer any queries that the Appellant or their family may have.

Common Grounds of Appeal

Appeals are governed by the Criminal Appeal Act 1968. The test that the Court of Appeal applies when deciding whether to allow an appeal against conviction is whether the conviction is “unsafe”.

The following are some of the most common grounds of appeal and areas of focus when considering how a wrongful conviction can be over-turned:

The Appellant was put at a disadvantage by his representation
The Judge resolved legal questions arising during the trial incorrectly
The Judge’s summing up mis-stated the law
The judge’s summing up was unbalanced and gave insufficient prominence to the Defence case
There is fresh evidence available which was not and could not reasonably have been called at trial.

Standard of Representation

Convicted people often seek to argue negligence on the part of their previous lawyers. It is however a very difficult ground to succeed upon. The Court of Appeal will not intervene merely because it can be shown that a defendant may have been better represented or that the tactical decisions made at trial were not the best possible choices, unless those failings can be argued to have rendered the conviction unsafe.

This is a very high-bar, it will need to be shown not only that the standard of representation was poor but equally that it is so poor that the conviction is unsafe. This is almost like saying that the representation must have been so poor that if proper representation had been afforded there is a realistic prospect that the Appellant would have been acquitted.

Errors of Law

The most fruitful area of challenge relates to where there have been legal errors made. This will include the drafting of a Judge's summing up and their legal directions. These can be robustly considered because many Judges now produce written Routes to Verdict and provide a written copy of their directions.

The following are some of the most common areas of law that will be considered when looking at whether a conviction can be appealed:

Separate functions of Judge and jury;
The difference between speculation and inference;
Assumptions and Preconceptions regarding sexual offences (i.e. preconceptions about how a rape victim would behave);
Behaviour when giving evidence (i.e. whether witnesses appear distressed);
Burden and standard of proof;
The elements of the offences;
Cross-admissibility (how the jury may use the evidence of one complainant in support of another);
The relevance of a defendant’s previous good character (or bad character if it has been admitted).

As well as the legal directions, freshly instructed representation will also consider the decisions made by a Judge regarding rulings both during and before the trial. This can include arguments about bad character and admissibility. It is also important to consider the way in which any questions that the Jury have asked as part of the trial.

Fresh Evidence

The Court of Appeal will sometimes allow fresh evidence to be admitted as part of the appeals process. Fresh evidence is evidence that was not called at the trial. Their willingness to do so is limited and significant hurdles must be overcome before a defendant is permitted to breach the one trial principle. One of the most important is whether the evidence could reasonably have been called at the trial.

The best explanation for a defendant wishing to rely on fresh evidence is that the material was not known about at the time of the trial and could not reasonably have been expected to be discovered. It is important to remember at all times when considering these issues, whether the fresh evidence, even if it proves what it is suggested it proves, is capable of rendering the conviction unsafe in the eyes of the Court of Appeal.

The Procedure

The first step is for counsel to be instructed and gain access to all of the relevant evidence. This can include obtaining access to what is known as the Digital Case System. Then it can be considered whether there is a need to obtain transcripts of the hearing. As part of this exercise, an Initial Advice on Appeal can be provided.

It is important to seek the opinion of those who carried out the trial, this means drafting what are known as 'McCook' questions which are targeted at understanding decisions which were made at the trial.

It is impossible to guarantee that an Advice will be positive. However, if it is, then Grounds of Appeal can be settled and served on the Court of Appeal.

These will then be considered by the Single Judge who will decide whether to give permission to appeal. If permission is given, then the case will be referred to the 'Full Court', this will be a hearing before three Court of Appeal Judges. This tribunal will then decide whether the conviction is unsafe and as such whether to quash the conviction or order a re-trial.

Even if the Single Judge does not give permission, an Appellant can renew permission before the Full Court. This means that an oral hearing will take place where the arguments can be rehearsed. This does carry a risk that the Court will make a loss of time order. However, it allows for counsel to make arguments and to respond to queries raised by the Court of Appeal.

Time Limits

It is very important to act within time limits, an appeal against conviction must be lodged within 28 days of the date of conviction. This can be extended and seeking new representation is one justification for such an extension.

This demonstrates the importance of acting expeditiously and if new representation is to be put in place, it should be done quickly.

The Imposition of a Suspended Sentence

Mon, 18 Dec 2023 15:49:27 GMT

The most delicate sentencing decision a Judge makes is whether to send someone to prison immediately or for them to receive a suspended sentence.

What is a Suspended Sentence?

Where an individual faces a custodial sentence, if it below a period of 2 years imprisonment, this may mean that it is a sentence which can be suspended. This means that the defendant does not go to prison straight away, but if they do not do as they are directed by probation or commit a further offence the sentence can be ‘activated’. Activation means that the Defendant will be sent to prison for the length of the sentence.

A suspended sentence is made up of two elements. The first is the ‘custodial period’ which is the actual custodial sentence. This will be linked to the offence, any credit for a guilty plea and any mitigation available to the Defendant. The second element is the ‘operational period’ which is the length of time the Defendant will be subject to supervision by probation.

How does a Judge Decide if a Sentence is Suspended?

Assuming the sentence is below two years imprisonment, this question is decided by reference to what are known as the imposition guidelines.

The first step is whether there are factors which mean the sentence should be one of immediate custody:

Offender presents a risk/danger to the public
Appropriate punishment can only be achieved by immediate custody
History of poor compliance with court orders

The next step is to look at whether there are factors which mean the sentence should be suspended:

Realistic prospect of rehabilitation
Strong personal mitigation
Immediate custody will result in significant harmful impact upon others

When presenting an argument in favour of a suspended sentence being imposed, it is very important to humanise an offender. This can include putting together character references from family members, employers and those in the community. It is also important to consider what the Defendant can say in respect of the offending, as a demonstration of genuine remorse and insight can be a vital factor in ensuring a suspended sentence is imposed.

A Judge is given a substantial level of discretion when deciding whether or not a sentence should be suspended, it will be very rare for the Court of Appeal to interfere with this decision.

What Requirements can be Attached to a Suspended Sentence?

Whilst a suspended sentence is considered punitive by its very nature, it will almost certainly include a punitive element over and above this. This can be achieved by the imposition of a curfew, a number of hours of unpaid work or alternatively a substantial financial penalty.

There is also a focus on rehabilitation. This can be done through Rehabilitation Activity Requirement (RAR) days, a programme requirement or through general probation supervision.

What if the Sentence is Breached?

A suspended sentence will be activated for breach unless it is unjust to do so. This is a high bar in principle but in reality if a genuine desire to comply with probation can be shown, this can often ensure a sentence is not activated.

If you are at risk of a breach, or you are facing the imposition of a custodial sentence, ensuring legal representation can make all the difference.

What to do if you have been convicted of an offence without knowing about the proceedings?

Tue, 12 Dec 2023 15:33:15 GMT

Since the introduction of postal requisitions and the Single Justice Procedure Notice, it has become a regular occurrence that people do not know about proceedings having been started against them.

Where an offence is committed, it can lead to a significant delay before the proceedings are started. As an aside, it’s very important to be aware that the prosecution must start proceedings within 6 months of the date of commission of minor offences. Due to the delay, this can mean that people move house or they simply don’t receive any notice of the proceedings.

This means that a case can start and proceed through trial and even sentence without someone even being aware an offence has been alleged. For some, the first time they hear about it is when they receive a notice of financial penalty.

There are a number of options as to what can be done if this happens.

Make a Statutory Declaration

The first option is to make a statutory declaration. This is a sworn statement that you did not know about the hearing. Under the Statutory Declarations Act 1835, the defendant's declaration can be made before anyone who is authorised by law to hear it (e.g. a solicitor), or before any Justice of the Peace (a magistrate or District Judge (Magistrates' Courts). The person who hears the declaration need not enquire into the truth of it.

You must give your completed declaration to the court within 21 days of finding out about your case. If you want to give a declaration after 21 days, you’ll have to ask the court if they’ll accept it.

Once the statutory declaration has been made, the case is reset and essentially starts again.

Apply to Re-Open the Proceedings

Alternatively, if you were not told about a hearing, you can apply to the Magistrates Court to re-open the proceedings under Section 142 of the Magistrates Court Act 1980. The test is whether or not it is in the interests of justice to re-open proceedings. This will normally be where the Court has not taken into account information or there has been an error of law.

There is a great deal of case law which identifies that this must relate to a mistake made by the Court, but this can extend to information which was not available to the Court at the time the decision was made.

Appeal to the Crown Court

There is an automatic right of appeal to the Crown Court from the Magistrates Court. This simply requires that the requisite appeal form is completed and served on the court within 15 working days.

In certain circumstances, the Crown Court may extend the period of time to apply to re-open the proceedings.

In summary, all is not lost if a case has happened in your absence, there are various steps which you can take in order to fight the case. Having expert legal representation can make the exercise far easier.

The Abolition of IPP Sentences

Wed, 06 Dec 2023 09:03:10 GMT

Imprisonment for Public Protection (“IPP”) sentences were abolished in 2012, this meant that they could no longer be imposed on those convicted of offences. However, for those who were already serving IPP sentences the abolition had no impact.

The IPP was imposed on those offenders who were considered ‘dangerous’ but did not meet the test for the imposition of a life sentence. This has subsequently been replaced by the imposition of either an extended determinate sentence or a discretionary life sentence.

An IPP sentence meant that whilst a Defendant would serve a specified period of imprisonment, they were liable to an indefinite licence period whereas with a normal determinate sentence the licence period is limited to the total length of the sentence.

An indefinite licence period means that an individual can also be recalled to prison indefinitely at the discretion of the probation service. Their release is then governed by the Parole Board and many individuals require repeated applications to be granted parole from an IPP sentence.

In 2022, a report prepared described the sentences as being “irredeemably flawed” and said the sentences “fuelled feelings of hopelessness and despair as well as high levels of self-harm and some suicides among prisoners”. In the report prepared by the Justice Select Committee the government was asked that all IPP prisoners to be resentenced – but this was rejected by the government.

As of 30 September there were 2,921 IPP prisoners, 1,269 of whom have never been released, with the remaining 1,652 having been recalled to custody.

The measures proposed by the government mean that IPP prisoners will now be given an end date for their sentence, rather than the sentence simply being left to continue.

Unduly Lenient Sentence

Tue, 31 Oct 2023 15:04:41 GMT

Once a sentencing exercise has been concluded, that is not necessarily the end of matters. If the sentence is particularly low it can be referred to the Court of Appeal.

On 27 ^th October 2023, Adil Iqbal was before the Court of Appeal having previously received a sentence of 12 years for Causing Death by Dangerous Driving. Following a change in legislation, the maximum sentence for the offence was increased to life imprisonment.

https://www.theguardian.com/uk-news/2023/oct/13/man-killed-pregnant-woman-m66-crash-jail-term-increased-adil-iqbal

A sentence can be referred to the Court of Appeal by the Attorney General’s Officer where it is considered that the case is unduly lenient. A review will be carried out by the Law Officers and if they consider the sentence appears unduly lenient, they can ask the Court of Appeal to review the sentence.

What are the Criteria?

In order to be referred, the sentence must meet the following three criteria as set out in Sections 35 and 36 of the Criminal Justice Act 1988:

Is passed in respect of an offence within the unduly lenient sentence scheme,
Is referred within 28 days of sentence being passed, and
Appears to be unduly lenient.

In order to be referred, the offence must either be indictable only or they must be included by way of reference in other legislation. It is important to note that if one offence for which an offender is sentenced is eligible for referral, the entire sentencing exercise can be referred. There are a number of offences which are eligible, these include:

Terrorism offences;
Serious sexual offences;
Sexual offences relating to children and vulnerable people.

A referral to the Court of Appeal must be made within 28 days of the date of sentence (Paragraph 1, Schedule 3 Criminal Justice Act 1988). The 28-day time limit is absolute. There is no power to extend the time limit or to apply for leave to refer out-of-time. The period is calculated using calendar days, not business days. It runs from the day following the sentence, so it will end on the same day of the week, four weeks later.

What does Unduly Lenient mean?

A sentence is considered to be unduly lenient where the sentence falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate (Attorney General's Reference No 4 of 1989 [1990] 1 WLR 41, Lord Lane CJ). This could be equated to the concept of unreasonableness in matters of judicial review.

It has also been held that the scheme is designed to tackle where there is a “gross error” or public confidence will be undermined if the sentence is not referred to the Court of Appeal.

What can the Court of Appeal do?

If the Court of Appeal rules that the sentence is not unduly lenient, then it will refuse the Law Officer’s application for leave to refer the sentence and the matter will be at an end. This will be done at an oral hearing and it is important to ensure legal representation is in place.

However, if the Court of Appeal finds that the sentence is unduly lenient, leave to refer will be granted. finds the sentence is unduly lenient, it will grant leave to refer the sentence. However, “even where [the court] considers that the sentence was unduly lenient, this court has a discretion as to whether to exercise its powers. to others for whose well-being the court ought to be concerned”: Attorney General's Reference No 4 of 1989 [1990] 1 WLR 41.

In deciding whether a sentence is unduly lenient or not, the Court of Appeal may only consider the material which was before the sentencing judge.

Notice of Intended Prosecution

Tue, 17 Oct 2023 07:28:15 GMT

Receiving a Notice of Intended Prosecution is the first step in a motoring offence, however, it does not mean that a conviction is inevitable.

Where a vehicle is alleged to have been involved in a motoring offence, the first step is that the Police will write to the registered keeper to establish the identity of the driver. There are a number of things that should be considered when providing a response.

Are they within time?

It is a requirement that within 14 days of an offence being committed, either the driver or the registered keeper must be warned that they may be prosecuted. This is a requirement under Section One of the Road Traffic Offenders Act 1988. This must be done in one of the following ways:

At the time of the offence, the driver is warned that there will be a consideration of prosecuting for an offence;
Serving a written Notice of Intended Prosecution on the driver or the registered keeper (by first class post, direct delivery or addressing and leaving at the address);
Issuing a summons (charge) in respect of the driver.

If the above steps have not been completed, this will be an absolute defence to any proceedings in respect of the driving. As such, the Police should immediately be informed of this and invited to bring an end to proceedings. There are two exceptions to this rule:

An accident took place;
A fixed penalty notice was issued.

Are the details of the driver and alleged offence correct?

It is common for the Police to make mistakes in respect of an alleged offence, if they have done this then it is immediately arguable that they cannot proceed. As such, it is vitally important to check that the following are accurate:

Time of the alleged offence;
Date of the alleged offence;
The address of the registered keeper (or the nominated driver);
The vehicle's registration number, make and model.

What other information do the Police provide?

The next stage becomes much more complicated. With certain police forces, they will now provide a link to view certain materials, this will ordinarily include the following:

The initial request for driver details;
Calibration certificate;
The screenshot of the calculation stage.

This is a stage when the above can be robustly challenged, looking at whether an approved device has been used which is properly calibrated as well as whether the calculation has been correctly and reliably carried out. This often requires specialist legal advice in order to ensure the matter is properly raised.

What about charging time limits?

In respect of a motoring offence which is summary only, a charge must be laid or a requisition issued within a period of 6 months from the date of the offence. This is a time limit that cannot be extended.

How should I complete the form?

This depends on whether you were the driver or not. If you were the driver then you should confirm the information (once you have considered the above points). If you were not, then you should complete the form giving the details of whoever the driver was. It is really important to ensure that the form is completed, rather than simply providing a covering letter, as the legislation makes clear that all the information must be contained in the form.

Falsely providing driver details is a serious offence and can amount to perverting the course of justice and a prison offence, it is vitally important to complete the form truthfully.

What are Special Reasons?

Tue, 10 Oct 2023 07:12:49 GMT

Special Reasons is an argument that no penalty points should be imposed because of particular circumstances where an individual faces sentence for a motoring offence.

The running of special reasons is quite rare, but it can be a useful tool to seek to avoid a disqualification being imposed.

A definition is provided in the case of R v Crossen [1939] 1 NI 106:

“A‘ special reason’ within the exception is one which is special to the facts of the particular case, that is special to the facts which constitute the offence. It is, in other words, a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence and one which the court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a ‘special reason’ within the exception.”

The approach to be taken to defining special reasons was further considered in R v Wickens (1958) 42 Cr. App. R. 236namely that the facts relied upon must:

(a) be a mitigating or extenuating circumstance;
(b) not amount in law to a defence to the charge;
(c) be directly connected with the commission of the offence; and
(d) be one which the court ought properly to take into consideration when passing sentence

There are seven points that are considered to be relevant when deploying an argument of special reasons (as were set out in Chatters v Burke [1986] 3 ALL E.R. 168):

1. How far the vehicle was driven (no distance);

2. In what manner it was driven (no evidence of poor control);

3. The state of the vehicle (no issue of poor repair);

4. Whether the driver intended to go further (in this instance it would be no further)

5. The road and traffic conditions prevailing at the time (no suggestion of poor conditions);

6. The likelihood of risk to any other road users or pedestrians (no evidence of risk);

7. What the reason was for driving the car (instead why was the phone being plugged in).

The case of James v Hall [1972] R.T.R. 228 provides authority for the basis that shortness of distance driven can amount to a Special Reason. As with many matters involving dis qualification, this will ultimately be a matter for the discretion of the court.

No Insurance

An argument of special reasons often arises in drink driving cases or those matters involving no insurance. This was considered in Rennison v Knowler [1948] 1 K.B. 488¸ it was held that:

“It may be that if a man who felt he did not understand his policy took the advice of someone who was apparently in a position to explain it, such as an insurance agent, and received a wrong opinion, this might be considered a special reason, or again, if the question turned on some obscure phrase which might lead a person to believe he was covered when a court ultimately decided that he was not. Those are questions which can be decided if and when they arise.”

The test that is normally applied to cases of no insurance is therefore described as being a determination as to whether the defendant had an honest belief, reasonably held, that they were insured.

Driving Whilst Disqualified

The case of Robertson v McNaughton [1993] SLT 1143 establishes a legal precedent supporting the argument that, in specific situations where a driver is unknowingly disqualified and later discovered driving while disqualified, a Special Reason may exist. This could allow them to avoid an additional period of disqualification or the imposition of penalty points.

Driving during an Emergency

Driving in an emergency may also constitute a Special Reason. In Brown v Dyerson [1969] 1 Q.B. 45, while the court ultimately determined that the defendant had not provided enough evidence to justify a Special Reason, it was nonetheless acknowledged that such circumstances could potentially qualify under the right conditions.

It will normally be a requirement that an argument of special reasons is supported by evidence, as such it is advisable to ensure legal representation is put in place.

Failing to Provide a Specimen of Breath

Tue, 03 Oct 2023 06:58:28 GMT

It is an offence to fail to provide a specimen of breath, however, recent research from the University of Sheffield suggests that some are simply unable to provide such a sample

Pursuant to Section 7 of the Road Traffic Act 1988, in the course of an investigation a police officer can require an individual to provide two samples of breath. This will be provided through an approved device which must be operated correctly and properly calibrated.

The request to provide a sample of breath must be made in a police station or hospital, by a constable in uniform in the course of an investigation into whether an offence of driving with excess alcohol has been committed.

The offence is strictly approached by the courts, a person who, without reasonable excuse, fails to provide a specimen when required to do so in pursuance of this section is guilty of an offence. The meaning of reasonable excuse is fact specific, but can include a medical reason such as asthma or needlephobia. A reasonable excuse will require the Defendant to raise some evidence of there being a reasonable excuse and for the Prosecution to disprove the defence so that the court can be sure that the Defendant did not have a reasonable excuse.

It is essential when seeking to rely on a medical defence that medical records are provided, expert evidence is sought and a robust approach is taken towards any prosecution evidence.

Any approach to trial should include being aware of any recent developments and up to date studies. In October 2023, the University of Sheffield published new research which suggests that more people than currently thought may be physically unable to use approved devices. This may be particularly applicable to older people, shorter people, women and those who smoke.

The research carried out was focused on studying spirometry data entries in the UK biobank, a spirometry is a measurement of how much air that a person can move in and out of their lungs. The research has suggested that as a many as one in 38 men and one in 26 women of small stature are incapable of providing an evidential breath sample.

The results of the above study can be relied upon in criminal proceedings either through the instruction of an expert or careful cross examination of a prosecution witness.

What Happens after Search and Seizure?

Thu, 21 Sep 2023 11:10:40 GMT

Clients are often very concerned about the legality of a search that has been carried out, but often the best area to attack is the retention of exhibits post-seizure.

Section 19 of the Police and Criminal Evidence Act 1984 states that once a search has been carried out, a property receipt must be provided setting out the items that have been seized and that this is to be provided upon request.

Obtaining Access

Section 21 provides at subsection (3):

Subject to subsection (8) below, if a request for permission to be granted access to anything which

(a) has been seized by a constable; and

(b) is retained by the police for the purpose of investigating an offence, is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized or by someone acting on behalf of such a person, the officer shall allow the person who made the request access to it under the supervision of a constable.

Obtaining Copies of Exhibits

Section 21 also provides at subsection (4):

Subject to subsection (8) below, if a request for a photograph or copy of any such thing is made to the officer in charge of the investigation by a person who had custody or control of the thing immediately before it was so seized, or by someone acting on behalf of such a person, the officer shall—

(a) allow the person who made the request access to it under the supervision of a constable for the purpose of photographing or copying it; or

(b) photograph or copy it, or cause it to be photographed or copied.

Ongoing Retention of Exhibits and the Legality

Searches and seizure are governed by Code B of the PACE Code, this code also deals with the approach to the retention of exhibits once they have been seized.

Para 7.5 of PACE Code B states:

An officer must have regard to their statutory obligation to retain an original document or other article only when a photograph or copy is not sufficient.

Para 7.7 of PACE Code B states that the limited power to seize property from premises or persons so they can sift or examine it elsewhere must be exercised carefully when essential and that no more material than necessary is removed. The Code continues to state:

Officers must carefully consider if removing copies or images of relevant material or data would be a satisfactory alternative to removing originals. When originals are taken, officers must be prepared to facilitate the provision of copies or images for the owners when reasonably practicable.

PACE Code B Para 7.9 makes the following clear:

It is the responsibility of the officer in charge of the investigation to make sure property is returned in accordance with sections 53 to 55. Material which there is no power to retain must be:

separated from the rest of the seized property, and

returned as soon as reasonably practicable after examination of all the seized property.

The area of retention of exhibits can be a useful tool in securing an outcome of no further action and ensuring that all relevant evidence is captured at an early stage.

Confiscation Orders - The Clock is Ticking

Thu, 14 Sep 2023 14:51:26 GMT

There are important time limits to be aware of when dealing with confiscation orders which can ensure no order is made

When dealing with confiscation, the Court will look to establish two separate figures:

The benefit figure - this is the amount that the Defendant has benefited. This can be made up of two separate figures:
Particular criminal conduct - the benefit from the actual offending that has taken place e.g. the sale price of a stolen painting;
General criminal conduct - if a Defendant has been convicted of a relevant offence the Court can determine that the Defendant has a criminal lifestyle. This means that assumptions are applied to any income in the period prior to conviction and it is assumed that all income and assets gained are as a result of general criminal conduct.
The available amount - the assets that are available to a Defendant in order to pay the sums that they are alleged to have benefited. This is particularly important as failure to pay the 'available amount' can result in enforcement proceedings and an additional prison sentence.

However, before reaching this stage, there are strict rules which relate to confiscation orders which the Prosecution must adhere to.

Under Section 14 of the Proceeds of Crime Act 2002, the Court are required to either deal with confiscation at the time of sentence or to postpone confiscation for a specified period.

The postponement of confiscation is normally done through the setting of a timetable, this will normally include directions for the following:

The service of a Section 18 Questionnaire - this is where a convicted Defendant will provide the Prosecution with a list of their assets which are available to them;
The provision of a Section 16 statement which is where the Prosecution outline what they say the Defendant's benefit is and what their available assets are;
The service of a Section 17 statement which is a response from the Defendant setting out areas of agreement and disagreement with the Prosecution.

If there is no postponement of confiscation or the making of an order, the Prosecution will need to apply under what is known as the slip-rule to bring the case back before the Court and try to re-open the case and seek confiscation. This will have to be done within 56 days.

Once a timetable has been set, there is still a requirement for a confiscation to be made during a 'permitted period'. This is the period which is two years from the date of conviction. This can only be extended in exceptional circumstances.

The above shows the importance of monitoring the prosecution's compliance with timetabling as their failure to do so can mean that they are barred from a confiscation order being made.

Escaping Unlawful Custody - What's next for Daniel Khalife?

Tue, 12 Sep 2023 11:49:52 GMT

Daniel Khalife made headlines recently by escaping from HMP Wandsworth and journeying to Chiswick. This is a common-law offence but will likely carry an additional sentence.

As this is a common law offence, that means that there is not a statute which sets out the "ingredients" of the offence". However, the offence is committed where someone who is lawfully in custody escapes from their incarceration. As it is a common law offence, the maximum sentence that can be imposed is life imprisonment.

Section 39 Prison Act 1952 makes it an offence to assist a prisoner to escape. Unlike escape or breach of prison, this particular offence only applies to persons in prison, not, for example, making a remand appearance at a magistrates' court.

It would appear that there is no dispute as to whether Mr Khalife was lawfully in custody or if he escaped.

The case has been sent to the Crown Court because it is an indictable only offence, as such, only the Crown Court can deal with it.

Driving a Motor Vehicle in a Dangerous Condition, Can I avoid a ban?

Mon, 11 Sep 2023 09:46:59 GMT

It is an offence to drive a motor vehicle in a dangerous condition, it can lead to the imposition of penalty points. If this results in 12 penalty points, this may lead to a 6 month disqualification.

It is an offence to drive a motor vehicle which is considered to be in a dangerous condition. This is when the vehicle or the trailer is such that the use involves danger of injury to any person because of:

the condition of the motor vehicle or trailer, or of its accessories or equipment, or
the purpose for which it is used, or
the number of passengers carried by it, or the manner in which they are carried, or
the weight, position or distribution of its load, or the manner in which it is secured

Some common examples of where a vehicle is found to be driven in a dangerous condition includes:

Under-inflated tyres;
An over-loaded vehicle;
Mechanical defects;
Inappropriate use of vehicle.

The main defence to an allegation is factual, simply that the use of the vehicle did not involve any danger of injury. This is quite a high bar and may require the instruction of an expert.

One important matter to check is that Section One of the RTOA 1988 has been complied with, this requires that the police inform the driver within 14 days of the alleged offence that the driver may be prosecuted for an offence.

However, even if there is no prospect of defending the charge, it is still possible to avoid a disqualification. A lifeline is offered by Section 48 of the Road Traffic Offenders Act 1988. This creates an exemption where the Court must not endorse points or disqualify if “he proves that he did not know, and had no reasonable cause to suspect, that the use of the vehicle involved a danger of injury to any person.”

The standard of proof is on the balance of probabilities, this means that the Defendant must show that it is more likely than not that they did not know that the use of the vehicle involved a danger of injury to any person. This will have to be done by the calling of evidence, which likely means the Defendant giving evidence about their state of mind at the time of the alleged offence.

The alternative is to consider whether a totting-up disqualification would cause exceptional hardship.

Intentional Strangulation – A Developing Approach to Sentence

Tue, 05 Sep 2023 19:53:55 GMT

In 2015, Parliament introduced Section 75(1)(a) of the Serious Crime Act 2015 which created an offence of non-fatal strangulation. Subsequently, the Court of Appeal has provided further guidance as to how the sentencing exercise should be approached.

This was introduced as part of a wide range of measures but was specifically targeted at increasing the seriousness of sentences for offences of strangulation which did not necessarily result in “really serious harm” or “ABH” type injuries.

It is committed when there is intentional strangulation i.e. the applying of force to the neck.

There are no sentencing guidelines for the offence, which is unusual. The Court of Appeal issued guidance in early 2023 in R v Cook [2023] EWCA Crim 452.

The Court made clear that the sentence of cases of this nature would inevitably be those which cross the custodial threshold. It was held that a custodial sentence will be appropriate save in exceptional circumstances. The starting point is 18 months custody.

There are additional factors set out in R v Cook which are said to increase the seriousness of the offence:

a) History of previous violence (the significance of the history will be greater when the previous violence has involved strangulation)

b) Presence of a child or children

c) Attack carried out in the victim’s home

d) Sustained or repeated strangulation

e) Use of ligature of equivalent

f) Abuse of power

g) Offender under influence of drink or drug

h) Offence on licence

i) Vulnerable victim

j) Steps taken to prevent the victim reporting an incident

k) Steps taken to prevent the victim obtaining assistance

There are also statutory aggravating features:

a) Previous convictions, having regard to (a) the nature of the offence to which the conviction relates, and its relevance to the current offence; and (b) the time that has elapsed since the conviction.

b) Offence committed whilst on bail.

c) Offence motivated by or demonstrating hostility based on any of the following characteristics, or presumed characteristics of the victim, disability, sexual orientation, or trans-gender identity.

The difficulty with the approach taken in R v Cook was that it was assumed that an immediate custodial sentence would the default sentence and there would only be a suspended sentence in exceptional circumstances. This would result in the Court of Appeal inviting those sentencing to ignore what are known as the imposition guidelines. These are the guidelines that are considered when deciding whether to impose a suspended sentence or an immediate prison sentence.

The offence of non-fatal strangulation was re-visited by the Court of Appeal in R v Borsodi [2023] EWCA Crim 899. There was clarification given in the case that although the starting point will be a custodial sentence (i.e. the offence crossing the custody threshold) this should not be interpreted as being an immediate custodial sentence.

The principle is that there will be an immediate custodial sentence ordinarily, rather than simply in exceptional circumstances. The Court of Appeal gave further guidance that those passing sentence must consider the imposition guidelines to determine whether an immediate custodial sentence should be imposed or a suspended sentence.

The Case of Andrew Malkinson – How does the CCRC Work?

Thu, 31 Aug 2023 14:24:25 GMT

The Criminal Cases Review Commission was set up as a result of the introduction of Section 8 of the Criminal Appeal Act 1995. The CCRC started work on 31 ^st March 1997.

The purpose of the CCRC is to consider cases which have already been before the Court of Appeal and have not been granted leave to appeal.

The test that CCRC must apply when considering a case is whether there is a real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made. The reference refers to referring the case to the Court of Appeal.

The meaning of “real possibility” is more than an outside chance or a bare possibility, but which may be less than a probability or a likelihood or a racing certainty.

The case of Andrew Malkinson made clear the importance of the CCRC. There was new DNA evidence that had become available which implicated another suspect. Furthermore, it was demonstrated that the Police withheld the following key information:

1. Photographs showing the victim’s hands, which contradicted medical evidence used to cast doubt on her account of causing a “deep scratch” to her attacker’s face. (Seen by police officers the day after the attack, Mr Malkinson had no trace of any such injury.)

2. The criminal convictions, including for dishonesty offences, of key prosecution witnesses Michael Seward and Beverley Craig. (These witnesses, who provided the only supporting evidence for the victim’s identification, were portrayed to the jury as honest.)

The CCRC had twice rejected Mr Malkinson’s application for leave to appeal in 2012 and 2020. This was despite there being DNA found in 2009 in a saliva stain from the victim’s vest top which was neither the DNA of Mr Malkinson or the victim.

This failure to refer the case in 2012 demonstrates that the CCRC’s decision should not always simply be accepted. A refusal by the CCRC is open to challenge firstly by way of reconsideration and subsequently by way of judicial review.

The judicial review can be on the basis of unreasonableness (i.e. no proper body would reach it), irrationality (i.e. the decision was made without inclusion of all relevant information) or finally illegality.

Loss of Time Order - What is the Risk of Appealing?

Thu, 31 Aug 2023 12:00:45 GMT

When a Defendant applies to the Court of Appeal for leave to appeal sentence or conviction, this carries the risk that the Court will make a loss of time order.

The procedure for seeking leave to appeal is that there will first be written grounds submitted. These are considered by a Single Judge (and is normally termed the “Single Judge Stage”). If the Single Judge grants leave, the case is referred to a Full Court of three Judges. If leave is refused, the default is that this is the end of the matter. It is open to a Defendant to renew permission to appeal, which results in the case being listed before the full-court for an application for permission to appeal.

A loss of time order is an order that the time spent in custody up until the date of the determination does not count towards their date for release. This date will depend upon the type and length of sentence that is imposed, but a loss of time order can – in some circumstances – run to a number of months.

It is important to note that the Court cannot make a loss of time order where they grant leave to appeal.

The Court of Appeal have increasingly used loss of time orders as a deterrent, this can include making an order where the Defendant has only taken the matter as far as seeking leave to appeal from the Single Judge.

The general test is whether an appeal is considered “unmeritorious” or entirely without merit, this is a very high bar. In R v Babiak [2017] EWCA Crim 160 it was said that loss of time orders would be made where unmeritorious applications were renewed regardless of whether the “box had been ticked” and regardless of whether renewal was on the advice of counsel.

The box ticking refers to a box on the Single Judge’s decision which will state whether there has been consideration of a loss of time order. The absence of ticking the box is not determinative, but it will clearly give guidance. This was brought in by Section 31 of the Criminal Appeals Act 1968.

What are the rules on Tachograph Recording?

Fri, 25 Aug 2023 07:22:31 GMT

Rhys is regularly asked to advise as to the rules on the recording of Tachograph hours where a vehicle is not technically being used for the transport of goods

Article 34 (1) of Regulation (EU) No 165/2014 of the European Parliament and of the Council states that:

Drivers shall use record sheets or driver cards every day on which they are driving, starting from the moment they take over the vehicle. The record sheet or driver card shall not be withdrawn before the end of the daily working period unless its withdrawal is otherwise authorised. No record sheet or driver card may be used to cover a period longer than that for which it is intended.

There is further guidance provided by the Article in that the meaning of driving is given the same meaning as working time in Regulation 2 of the Road Transport (Working Time) Regulations 2005. Working time is defined as follows:

the time from the beginning to the end of work during which –

(a) the mobile worker or self-employed driver is at his workstation;

(b) the mobile worker is at the disposal of his employer, or (as applicable) the self employed driver is at the disposal of the client; and

(i) time devoted to all road transport activities, including, in particular—

(aa) driving;

(bb) loading and unloading;

(cc) assisting passengers boarding and disembarking from the vehicle;

(dd) cleaning and technical maintenance;

(ee) all other work intended to ensure the safety of the vehicle, its cargo and passengers or to fulfil the legal or regulatory obligations directly linked to the specific transport operation under way, including monitoring of loading and unloading and dealing with administrative formalities with police, customs, immigration officers and others; or

(ii) time during which the mobile worker or self-employed driver cannot dispose freely of his time and is required (or, in relation to a self-employed driver, chooses) to be at his workstation, ready to take up normal work, with certain tasks associated with being on duty, in particular during periods awaiting loading or unloading where their foreseeable duration is not known in advance, that is to say either before departure or just before the actual start of the period in question, or under collective agreements or workforce agreements;

but, in relation to self-employed drivers, general administrative work that is not directly linked to the specific transport operation under way is excluded from working time.

Article 3(g) of Regulation (EC) No 561/2006 of the European Parliament and of the Council states it “shall not apply to carriage by road by vehicles undergoing road tests for technical development, repair or maintenance purposes, and new or rebuilt vehicles which have not yet been put into service.”

Furthermore, EC561/2006 continues that under Article 4(a) ‘carriage by road’ means any journey made entirely or in part on roads open to the public by a vehicle, whether laden or not, used for the carriage of passengers or goods.

The key section is in the definition of working time as set out above at para 4. Whilst the employee would have been at the employer’s disposal, it is then a question of whether the meaning of driving is limited to driving as part of the specific transport operation underway. Thus qualifying the meaning of driving in the above definition. The taking of a vehicle for an MOT test would not seem to relate to the specific transport operation underway on the face of it.

There is further support for this position as outlined in Article 3(g) of Regulation (EC) No 561/2006 which provides an exemption for where road testing is taking place. One of the peculiarities of the legislation in this instance is that if the vehicle were being driven during an MOT test, this would not require a tachograph.

EU rules (Regulation (EC) 561/2006) apply to vehicles used for the carriage of goods.

The term “goods” includes goods or burden of any description. It doesn’t include parts of a vehicle or trailer’s fixed equipment manufactured as part of the vehicle or trailer and which enable the extension of the fixed equipment. It also doesn’t include ballast used for the purpose of road testing a vehicle or for MOT or annual test purposes provided the ballast is a non-commercial load.

Non-commercial carriage is defined as any carriage by road, other than carriage for hire or reward or on own account, for which no direct or indirect remuneration is received and which does not directly or indirectly generate any income for the driver of the vehicle or for others and which is not linked to professional or commercial activity.

There is an additional caveat in that drivers who are employed to drive vehicles which would normally be in scope of EU/ AETR rules but who never carry goods or passengers in the course of that employment (and for agency drivers this means each individual placement) are not considered to be within scope of the regulations. This would specifically include empty vehicles being driven to or from annual test and driving a vehicle for the purpose of moving it between depots.

There are two interpretations of the above, either it applies to all drivers where the vehicle is not being driven for hire or reward or it applies to those drivers who do not usually drive for hire or reward and are driving the vehicle for the purpose set out above. I take the view that it applies to the latter and as such if a driver, who normally drives for hire and reward, takes a vehicle for an MOT they should be declaring the hours as working time and/or using the digital tachograph.

Rhys' View

This is an area in which there is no clear answer, it is arguable that there is a Defence where a driver takes a vehicle for an MOT. However, the position domestically appears to be that if an individual ordinarily drives for hire or reward they should have had a tachograph installed and record any hours accordingly.

Notwithstanding the above, it is very important to obtain legal advice in this area and for representations to be drafted.

What happens when a Defendant doesn't attend?

Tue, 22 Aug 2023 15:07:09 GMT

Lucy Letby refused to attend her sentencing hearing, leading to substantial public outcry about the law in this area. But what is the legal position?

When a Defendant is on bail, the solution is relatively simple, a warrant will be issued for the Defendant and constables will be asked to use their efforts to arrest the Defendant and bring them to Court.

However, where a Defendant is remanded in custody, the powers of the Court are much more limited. There is no power, save for issuing a summons which cannot be enforced against a Defendant, to require the Defendant to attend Court from custody. This is why we find situations such as with Lucy Letby and Thomas Cushman where they simply refuse to attend for their sentencing hearing.

It has been suggested that there is a 2 year period of imprisonment that could be imposed where a Defendant fails to attend. It is not clear where this originates from, it is likely due to the maximum sentence for contempt of court being 2 years. It would be extremely difficult to find that a Defendant failing to attend a sentencing hearing amounts to contempt, it would be surprising if such a measure were taken.

In respect of Lucy Letby, it is difficult to see what powers the Court could use to ensure her attendance short of physically dragging her into the court-room, that is unlikely to achieve anything in the long term. The only motivation where someone is going to receive a whole life order is to threaten to take away prison privileges. In reality, where a Court is dealing with a sentencing hearing, they will simply proceed in the Defendant's absence.

However, if this were a trial, the Court will not simply proceed - they will have to apply a rigorous test. The test is set out in R v Jones [1999] UKHL. This is whether or not the Defendant has voluntarily absented themselves. The Court will have to be satisfied that they have, prior to deciding to proceed in the absence of the Defendant.

Whole Life Orders

Mon, 21 Aug 2023 11:43:13 GMT

What is the guidance on Whole Life Orders and when can they be imposed?

When imposing a life sentence (discretionary or mandatory), the court must make either a whole life order or otherwise fix a minimum term that the offender must serve in custody before the Parole Board can consider whether to release the offender.

A Whole Life Order is the most severe sentence that is available. There has been an increase in the attention paid to them due to the recent cases of Couzens and Letby.

It is an order which means that the release provisions are not to apply to the offender, the effect is that the Defendant will never be released from custody. A Whole Life Order will only be appropriate where the offence, or the combination of the offence and one or more offences associated with it, is so serious that a Whole Life Order is justified, regardless of the future risk that an offender may pose.

There i s an increasing amount of case law in this area. McCann and Sinaga are two cases referred to the Court of Appeal by the Attorney General to seek whole of life orders in respect of two of the most serious campaigns of rape to have been tried in England and Wales.

While the Court of Appeal noted that a whole life term may be attached to a discretionary life sentence in cases such as these, it held that there is a principled reason for reserving the most serious sentences to cases of murder, save in the most exceptional circumstances and that a determinate term of appropriate length would meet the requirements of retribution and punishment. The court i ncreased the minimum term from 30 to 40 years' imprisonment in each case. This demonstrates that sentences of this type will ordinarily be restricted to sentencing defendants who have been found guilty (or in the case of Couzens pleaded guilty) to an offence of murder.

Whole of life orders will be made where an offender is over 21 at the time of the offence and the offence, or the combination of the offence and one or more offences associated with it, was so serious in and of its own account that incarceration until the end of the offender’s life is justified, irrespective of the future risk the offender may pose.

Cases which merit a Whole Life Order have generally included the following:

the murder of two or more persons where each murder involved a substantial degree of planning or the abduction of the victim, or sexual or sadistic conduct
the murder of a child involving their abduction or otherwise sexual or sadistic motivation
the murder of a child involving a substantial degree of premeditation or planning (in respect of offences committed on or after 28 June 2022)
the murder of a police officer or prison officer in the course of his or her duty
murder for the purposes of advancing a political, religious, racial or ideological cause, or
a murder committed by an offender who has previously been convicted of murder

A whole life order should be imposed where the seriousness of the offending is so exceptionally high that just punishment requires the offender to be kept in prison for the rest of their life.

In four joined cases, the Court of Appeal reiterated the principles to be applied when determining whether to impose a "whole life" order pursuant to the Sentencing Act 2020 Pt 10 s.321(3)(b) and Sch.21 following a conviction for murder.

The same approach applies to sentencing as in any other matter, where the seriousness of an offence is “exceptionally high” the starting point will be a whole life order. However, where it is particularly high the starting point will be a 30 year minimum term. This is the approach that a Judge should take.

Each case will be fact specific and even an offence which does not contain the Para 2 criteria may justify a whole life order, for example the case of Couzens which involved the rape, abduction and murder of a young girl by a serving police officer justified a whole life order. Of those five cases heard by the Court of Appeal, only Couzens’ whole life order remained.

Section 41 - Limitations on Cross Examination

Mon, 21 Aug 2023 11:43:11 GMT

Can the Defence ask about a Complainant’s Previous Sexual Activity?

The sexual history of a witness, in particular where there may have been previous allegations, is an area that people are regularly keen to explore during questioning by the defence. However, there are substantial limitations on what can be asked.

Section 41 of the Youth Justice and Criminal Evidence Act 1999 states that questioning regarding previous sexual behaviour may not be asked without leave of the Court. Leave (permission) will only be granted in certain circumstances. This has become an increasingly important area of law and was developed substantially in the case involving professional footballer, Ched Evans.

The approach to be taken to Section 41 differs as to what the defence (or matter in issue) is in the particular case, the main difference being where consent is the defence.

Subsection (3) (b) states that if it is an issue of consent it will only be admissible if the sexual behaviour that the evidence/question relates to is alleged to have taken place at or about the same time as the event which is the subject matter of the charge against the accused.

Alternatively, if the sexual behaviour is so similar to the allegation or other sexual behaviour from the time of the alleged offence.

The meaning of similarity does not mean “strikingly similar” as it has done in previous legislation, it is largely a question of fairness and the safety of the conviction.

If the issue is not consent, then the sole question to be determined by a Judge is whether it is relevant to an issue in the case. The final gateway is where the evidence relates to that which has been admitted into evidence by the Prosecution.

Section 42(1)(c) of the 1999 Act provides that “sexual behaviour” means any sexual behaviour or other sexual experience, whether or not involving any accused or other person, but excluding (except in section 41(3)(c)(i) and (5)(a) anything alleged to have taken place as part of the event which is the subject matter of the charge against the accused’.

In cases involving allegations of sexual behaviour, it is extremely important to have a representative who is familiar with Section 41 and how it operates. Rhys recently was instructed in the case of R v S which involved various applications under Section 41 as the complainant had made several previous allegations of rape. S was acquitted following an 8 day trial at Wood Green Crown Court.

Exceptional Hardship - What does it really mean?

Fri, 11 Aug 2023 14:28:40 GMT

When a driver reaches 12 points on their licence, it can mean a disqualification of six months unless exceptional hardship can be argued.

There is a myth in the Magistrates Court that an argument of "exceptional hardship" should be considered a very high bar. There is no case-law that says this, the origins are simply unknown.

Simply put, the test is that exceptional hardship is something that is more than just hardship. It is inevitable that as a result of losing a licence, an offender will suffer hardship and punishment. This can include having to take public transport, loss of income or being unable to visit loved ones.

It is for the defendant to prove exceptional hardship, the test being that such hardship being experienced is more likely than not. Ordinarily, there will need to be evidence given on oath.

When arguing exceptional hardship, the focus should be on three separate things:

What is the hardship?
Who is impacted?
Is there an alternative?

What is the Hardship?

The most obvious impact of losing a driving licence is that someone will lose their job. That, on its own, is not enough. It was confirmed in Railton v Houston [1986] 6 WLUK 68, that when approaching disqualification that loss of employment and income can lead to the inability to pay a mortgage, this can be sufficient to make a finding of exceptional hardship.

The impact on the self-employed is also particularly pertinent, in particular the impact on employees. In McFadyen v Tudhope [1986] SCCR 712, it was stated that the Court should consider the impact on employees of a business where a defendant was at risk of losing their licence;

Who is Impacted?

A Court will inevitably be more persuaded by hardship that is experienced by someone other than the offender. This can include family members and particular consideration will be given to those who are vulnerable. The consideration of loss of employment will be keenly felt by others. This will also include employers and employees who have been given specific consideration in case law.

The leading case in the importance of considering the impact on others is Cornwall v Coke [1976] Crim. L.R. 519 , where it was confirmed that innocent third parties should be central to the Court's consideration.

Is There an Alternative?

When arguing exceptional hardship, it is important to be prepared to show that there is no alternative solution to having a full driving licence. This will include considering public transport, private hire taxis and even in some circumstances the hire of a driver.

The test the Court will apply is whether there is exceptional hardship, not simply that it will make someone's life difficult.

Ensuring adequate representation is exceptional, Rhys has extensive experience in making arguments of this type both at first instance and on appeal.

Section 444 Education Act

Tue, 08 Aug 2023 13:23:21 GMT

The offence of Failing to Ensure a Child attends school can have serious consequences for a parent.

Section 444 of the Education Act 1996 created the offence of failing to ensure regular attendance at school of a registered pupil.

It states that if a child of compulsory school age who is a registered pupil at a school fails to attend regularly at the school, their parent is guilty of an offence. This is what is known as a strict liability offence, it means that even if the parent intended for their child to attend school, they can still be found guilty of the offence.

There is an aggravated version of the offence where the Prosecution can prove that the parent knows that their child is failing to attend school. This carries a greater penalty than the simple offence.

The defence to the charge is for the parent to prove that they had a reasonable justification for his failure to cause the child to attend regularly at the school.

These offences can have serious consequences which include financial penalties. Where the parent knows their child is failing to attend school, it can lead to a prison sentence of up to 3 months.

Rhys has an excellent track record in these cases. These offences are regularly prosecuted by local authorities, taking a robust approach to disclosure often ensures a positive outcome as does a clear and cogent understanding of the legislation.

A Course of Conduct - What does this mean in terms of Harassment?

Tue, 13 Jun 2023 10:46:41 GMT

The meaning of "Course of Conduct" is frequently misunderstood by the Prosecution and the Courts

It is generally assumed that a course of conduct is simply more than one incident, this is because Section 7 (3) of the Protection from Harassment Act 1997 states that there must be at least "two separate occasions".

However, case law has shown us that whilst two incidents can constitute a “course of conduct”, the fewer the incidents and the greater their separation in time, the less likely it is that they could be described as a “course of conduct. It is a higher bar than there simply being more than one incident.

The following is the general guidance to be followed in respect of an allegation of harassment when determining whether or not behaviour amounts to a course of conduct:

there is no requirement that each individual act forming part of a course of conduct must be of sufficient gravity to be a crime in itself; nevertheless, the fewer the incidents, the more serious each is likely to have to be for the course of conduct to amount to harassment;
findings of fact relating to conduct which has not expressly been particularised in the charge should not be taken into account;
the facts of a separately charged offence (in the instant case, a racially-aggravated public order offence), whether they lead to a conviction or not, are capable of forming part of the course of conduct; however, where the specific facts relative to a separate charge have led to a conviction, and where it is that conviction which makes all the difference between a course of conduct falling short of harassment and amounting to harassment, it would be oppressive and unfair for those facts in effect to lead to two convictions; and
in any event, if the facts of a separately charged offence are to be relied on, that should be made clear at the outset, so that any issues of fairness or duplicity can be dealt with.

What if the Magistrates Get it Wrong?

Tue, 06 Jun 2023 11:46:04 GMT

In this article, Rhys examines the powers under Section 8B of the Magistrates Court Act 1980 to over-turn a ruling made by a previously constituted bench of Magistrates

Section 8 A – Magistrates Court Act 1980

If a bench of Magistrates or a District Judge make a ruling, it will generally be regarded as a pre-trial ruling. This means that it is binding until the proceedings have concluded. These rulings will generally refer to:

- Bad Character Evidence

- Hearsay evidence

- Admissibility

This can be particularly difficult where a new legal representative takes over conduct of a case . However, Section 8B permits the ruling to be varied where:

a. It is in the interests of justice for the ruling to be varied;

b. There has been a material change in circumstances since the application was made.

When a Court is determining an application of this sort, guidance can be taken from the position at case law prior to the introduction of Section 8B. In Newham Juvenile Court, ex parte F (a minor) [1986] it was held that ‘Once a decision has been made after proper inquiry and consideration of all relevant factors, it cannot be reversed merely by re-examining the case afresh on the same material’.

The Court continued to state that ‘if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court’.

In R. (on the application of Poskitt) v Reading Magistrates' Court [2018], the Administrative Court held that it was proper to use the power

under Section 8B where details of a caution had been disclosed since the application was originally heard. Para [20] states:

I reject this submission. I am satisfied that when the decision was made on 1 February, there was a material change of circumstances since the first ruling on 29 November refusing the admission of bad character evidence, namely the disclosure of the details of the convictions. Since the hearing on 29 November, the CPS had disclosed the details of the two cautions, notice was given of the application to admit bad character evidence on the basis of that disclosure and at the hearing, all parties in the court were aware of the relevant facts. Moreover, the Crown did not object to the admission of the cautions.

This is a very complex area of law and one which is widely regarded as under-utilised. If deployed correctly, it can turn a hopeless case into one which has a real chance of succeeding. It can also be a cost-efficient way of ensuring that matters are dealt with at the first attempt rather than necessitating an appeal.

What Happens at a Plea and Trial Preparation Hearing

Fri, 02 Jun 2023 14:15:27 GMT

A Plea and Trial Preparation Hearing, or PTPH as lawyers will call it, is ordinarily the first hearing before the Crown Court. The only exception is where the alleged offence is one of murder, in which case there will be a preliminary hearing ordinarily the day after the first hearing at the Magistrates Court.

What to Expect at a Plea and Trial Preparation Hearing?

The PTPH is for case management purposes and for the defendant to be asked if they are guilty or not guilty – this is known as arraignment. At this stage, if a Defendant pleads guilty, they are ordinarily entitled to a 25% reduction in sentence (known as credit for guilty plea).

Identification and Arraignment

The Defendant will first be identified and asked to confirm their name, they may be asked some further personal details. They will then be asked if they are Guilty or Not Guilty. If the Defence intend to make an application to dismiss or ask for the proceedings to be stayed as an abuse of process, then the Defendant will not be arraigned.

After a plea has been entered, the case will either move to case management or sentence. If there is a Not Guilty plea, the Judge will enquire as to what the issue is in the case, this means that the Judge is asking what the Defence is. The Judge will then ask about which witnesses should be required to give evidence.

Stage Dates

A substantial part of a PTPH is the giving of ‘Stage Dates’, these are as follows:

Stage One

This is when the prosecution are required to serve their case, this means disclosing the evidence that they rely on. This will include witness statements, exhibits, expert reports and any scientific evidence that is relied upon.

The prosecution are also required to make any applications by this date. This will include bad character (applications to rely on previous convictions), hearsay and what are known as special measures (for example where a witness gives evidence from behind a screen).

The Prosecution must also served unused material and a schedule of this material. This is the material that either undermines their case or assists the defence case. This can include very helpful information which may demonstrate witnesses are untruthful or other witnesses who help the defendant’s case.

Stage Two

This is an important date for the defence. This is the date by which the Defendant must serve what is called a defence statement. This is a document which should set out the nature of the Defendant’s defence, any facts they rely on and what issues they take with the prosecution case. It’s important to get this document right because a defendant can be cross-examined on its contents when they give evidence. Furthermore, a defence statement is a vital tool to trigger the disclosure of material. This is because the prosecution are required to consider the contents of the document and analyse whether as a result there is further material that ought to be disclosed. It can also trigger further reasonable lines of enquiry to be carried out.

The Defence are also required to provide their witness requirements and to respond to any disclosure documents that have been uploaded by the prosecution.

Stage Three

This is the date by which the Prosecution must reply to the Defence Statement and answer any queries that have been raised by the defence. That will include disclosing any specific materials that have been requested by the defence.

Stage Four

This is a date which only tends to be of importance in complex cases. It is the date that the defence should respond to the prosecution with any further queries that they may have. The Court will then set a date for a Certificate of Trial Readiness (COTR) to be filed, this is something that is done by lawyers rather than the defendant.

Trial Date

The next step is that the Court will look to set a trial date. This can be a fixed date or a warned list date. A warned list is where the Court will give a specific Monday and the case can be called in for trial on any day during the two week period thereafter. A warned list is normally used for straight forward shorter trials.

Releasing on Bail

Finally, the Court will release the Defendant on bail or remand them into custody. If the Defendant is in custody, the custody time limit must be stated in open court. This is the maximum period of time a defendant can be kept in custody and is ordinarily 182 days.

What to Expect at a First Appearance

Thu, 01 Jun 2023 09:56:59 GMT

Rhys discusses what a Defendant should expect for their First Appearance before the Magistrates Court

Often, it can be someone’s first time attending court. All cases in England and Wales start in the Magistrates Court, which will be the nearest court to where the alleged offence took place.

Identification

The first thing to happen is that the Defendant will be identified. This means they will be asked to confirm their Name, Address, Date of Birth and Nationality. These matters ordinarily have to be given in public as there is a principle of open justice.

The next stage depends on the type of offence that the Defendant has been charged with. If the case is summary only (a maximum sentence of 6 months) they will be asked to enter their plea.

Allocation

If the case is either-way, for example Assault Occasioning Actual Bodily Harm, they will be asked to go through a procedure known as ‘plea before venue’. This is where a plea is indicated and the Magistrates Court proceeds to deal with allocation. This is where the Magistrates Court decide whether the case can stay in the Magistrates Court or should be sent to the Crown Court. The test is whether the Magistrates Court sentencing powers are sufficient, in essence whether the sentence is such that the Crown Court ought to deal with it – ordinarily where the sentence will be in excess of 6 months imprisonment. The Magistrates may also send the case to the Crown Court if it is particular complex. It is important to remember that even if the Magistrates keep the case, this is known as retaining jurisdiction, they can still commit for sentence in due course.

Electing a Crown Court Trial

If the Magistrates decide that their sentencing powers are sufficient, then a Defendant retains the right to exercise their right to a Crown Court trial. This is known as ‘electing a crown court trial’. There are many advantages to being heard before the Crown Court, the rate of acquittal is higher and the case will be considered more fully before a jury. On the other hand, the case will ordinarily take longer to be dealt with before the Crown Court and there is an automatic right of appeal from the Magistrates Court.

Case Management in the Magistrates Court

Once the Court has decided whether to commit the matter, the case moves to the next stage. If the case is to remain in the Magistrates Court the matter proceeds to case management. This is where the court will go through a Preparation for Effective Trial form – more commonly referred to as a ‘PET Form’. This includes what the issues are for trial and also which witnesses should be required to give live evidence. It is very important that this form is filled in fully and tactically. The court will then set a trial date.

Sending the Case for a PTPH

On the other hand, if the case is sent to the Crown Court, the matter will be adjourned for 28 days and the case will then be listed for a Plea and Trial Preparation Hearing or PTPH.

The End of the Hearing

Once the above has been completed, the case will be at an end and the Defendant will either be released on bail or remanded in custody. If the Defendant attends court on bail, the usual course is for them to remain on bail unless there have been any breaches of bail. If the Defendant has been remanded it is usual for a bail application to be made before the Magistrates Court or alternatively for a legal representative to try and agree bail with the Crown Prosecution Service.

What is the Meaning of Possession?

Wed, 31 May 2023 10:28:05 GMT

The Meaning of Possession - Firearms, Criminal Property and Indecent Images.

So what does possession mean?

Barristers and Solicitors are often asked about what possession actually means. This can be in the context of firearm offences, possession of criminal property or most commonly indecent images of children.

There are regularly occasions when items are left with an individual who did not know they are there or that files are downloaded to a device without an individual's knowledge.

"Possession" involves both a physical and mental element. The physical element is that a person must have custody and control of the photographs in question. The mental element is knowledge – a defendant must knowingly have custody and control of the photographs.

This can mean, for example, when an individual takes possession of an item or has images automatically downloaded to their device, they cannot be said to have custody and control of any images.

The most recent case law in respect of possession is R v Okoro (No. 3) [2018] EWCA Crim 19. The test is now settled to be a two-stage test as follows, of course the Crown would bear the usual burden and standard of proof:

1. The images must be in the custody or control of the suspect i.e. so that they are capable of accessing, or in a position to retrieve the image(s); and

2. The suspect must have known that they possessed an image or group of images on the relevant device/devices. Knowledge of the content of those images is not required – the statutory defences deal with that.

The following principles have been considered as relevant in relation to deleted images (R v Porter [2006] 1 Cr. App. R. 25; R v Leonard [2012] 2 Cr. App. R. 12):

1. Where the photos are stored on the device (or where an item is stored physically)

2. The means by which they could be retrieved in the sense set out above

3. Whether the suspect has the wherewithal to retrieve them i.e. the technical knowledge/software/equipment required to do so.

In the alternative, Defendants can often rely on the case of R v Collier [2005] 1 Cr. App. R. 9. This provides a defence as the Court of Appeal held that a lack of awareness in respect of the inclusion of children on the CD enabled him to rely on the statutory defence despite the fact he knew due it was indecent.

Appealing a Conviction After a Guilty Plea

Wed, 12 Apr 2023 13:22:05 GMT

An Application to Vacate a Guilty Plea should be made prior to sentence. However, in narrow circumstances, it is possible to appeal to the Court of Appeal even where a Defendant has pleaded guilty.

The issue of whether a Defendant could appeal against their conviction was recently considered in R v Tredget [2022] EWCA Crim 108.

There are three possible grounds on which an appeal could be pursued:

The Guilty plea was defective:

The first example is where the Defendant was entered a the plea which was equivocal. An equivocal plea is where someone states, for example, that they are guilty but they are not really guilty. The difficulty with this approach is that a Defendant will have been arraigned before the Court and had the indictment read out to them in full (Revitt & Ors v DPP [2006] EWHC 2266 (Admin).

The plea was entered on the basis of poor legal advice. This will ordinarily arise where the particulars of an offence have not been properly explained. In R v McCarthy [2015] EWCA Crim 1185 the Court stated as follows:

“In our view, this is one of those exceptional cases where we should intervene. We are far from confident that when the applicant pleaded guilty to the offence of wounding with intent he had a proper understanding of the elements of the offence. In that sense, his freedom of choice was improperly narrowed. It cannot be argued that he had no defence on a charge of wounding with intent.”

There may also be pressure placed on a Defendant, however there is a fine line between receiving robust advice and pressure being placed – the reality is that the Court of Appeal will ordinarily consider that the former is correct. Ultimately, it is for the Defendant to decide whether they should change their plea (R v Nightingale [2013] EWCA Crim 405).

The proceedings before the Court were unlawful

This will ordinarily be where it was an abuse of process to prosecute a defendant. The provisions relating to this were set out in Maxwell i.e. that it would either be impossible for the Defendant to have a fair trial or that it would be an affront to the Court’s sense of justice.

The Defendant is Innocent

This is where it can be shown that the Defendant did not commit the offence. This was what took place in the recent Post Office series of cases.

Streamlined Forensic Reporting - A Word of Warning

Tue, 11 Apr 2023 10:49:39 GMT

The Police and Crown Prosecution Service are increasingly relying on Streamlined Forensic Reports, but it's important not to simply accept these at face value.

Streamlined Forensic Reports were introduced as a means to expedite criminal proceedings. They are essentially a summary of findings i.e. that there is a DNA match to a suspect or that there is evidence of a bodily fluid. Often, they will not contain any statistical analysis as to the accuracy of findings.

An SFR/1 is not a witness statement nor an expert’s report, which would require the level of detail specified in the Criminal Procedure Rules (CrimPR r19.3(3)). An SFR/1 does not contain an expert’s declaration which would allow it to be compliant with Part 19. Where the SFR1 is not agreed, the process set out in in CrimPR 19.3(2) must be followed. That provides that the defence must serve a response stating which, if any, of the expert’s conclusions are admitted and which are disputed.

There are only a small number of organisations which are authorised to prepare streamlined forensic reports:

Eurofins Forensic Services
Key Forensic Services
Forensic Access Ltd
Metropolitan Police Laboratory
Merseyside Police
South Wales Police
West Midlands Police

An SFR/1 can only be admissible where it is agreed by the Defence. If it is not agreed, then it is necessary to raise a ‘real issue’ in respect of the SFR. This will then lead to an SFR/2 being prepared which is a fuller report and sets out the approach taken.

SFRs are regularly used in firearms and cases involving sexual offences. They can be relied upon to establish identification as well as toxicology results. As such, they can be central evidence in criminal cases.

In Hunt v CPS [2018] EWHC 3341 (Admin) it was confirmed that an SFR can only be admitted if it is agreed by the Defence.

In particular cases, it can be necessary to obtain the underlying data pack and instruct a defence expert, especially if the evidence relied upon is particularly crucial to a case.

What is Confiscation and Why Does it Matter?

Wed, 05 Apr 2023 15:15:33 GMT

It was revealed by the CPS following the sentence of Stephen Bear that the Prosecution would be seeking to commence confiscation proceedings against Stephen Bear. This is a complex area of law and requires careful handling.

What is the Test to Apply?

Following conviction for any offence where it is assumed that there has been a financial benefit from the offending, the Court must ask itself the following questions (as per the guidance of the House of Lords in R v May [2008] UKHL 28):

1. Has the defendant benefitted from his crime?

2. If so, what is the value of his benefit?

3. What sum is recoverable from the defendant?

What is the Procedure?

The first step is that a Defendant is required to complete a Section 18 questionnaire. This requires them to provide various pieces of information including:

- What bank accounts they have;

- Whether they have any pensions;

- Whether they own any property;

- What pension entitlement they have.

Once the Defendant has completed this questionnaire, the Prosecution will provide a Section 16 statement. This will set out what the Prosecution say the Defendant’s benefit figure is and what their available amount is.

A benefit figure is the amount that the Prosecution suggest the Defendant has gained by virtue of their offending. This is either as a result of particular criminal conduct or in some circumstances it can relate to whether they have a ‘criminal lifestyle’ or have been convicted of a ‘lifestyle offence’; this may also be called general criminal conduct. This can be in the following circumstances:

1. The Defendant has been convicted of a ‘lifestyle offence’;

2. The number of offences or frequency of offences is such that a criminal lifestyle is established.

This means that the Prosecution are entitled to make various assumptions and any unexplained income in the preceding years will be treated as from criminal conduct and so susceptible to confiscation.

After this, the Defence can serve a Section 17 statement which responds to the assertions made by the Prosecution.

There will then either be a contested hearing or an agreed order. This will have a time to pay and what is called a sentence in default.

What if I don’t pay?

The sentence in default can come into effect. This will be after enforcement proceedings have been pursued before the Magistrates Court. It can lead to a substantial additional period of custody.

It is important to be aware that a Defendant will only be required to pay the available amount. If the benefit figure is higher than this, it can only be revisited if there is a subsequent change in the assets held by the Defendant.

Sentencing Principles during Covid-19 and Prison Overcrowding

Fri, 31 Mar 2023 15:18:09 GMT

Defendants are likely to receive either shorter sentences or even suspended sentences as a result of current conditions in custody.

During the Covid-19 pandemic and the months thereafter, Defendants became well aware of the reduction that could be afforded if they had been remanded during the 'lockdown' times. This became known as the R v Manning [2020] EWCA Crim 592 (Manning) principle. This meant that a custodial sentence would be reduced from what it would otherwise be.

The principle of Manning remains effective even in 2023 for those who have been remanded for a long period of time.

More recently, the Court of Appeal has issued substantial guidance in respect of how a Court can take into account prison over-crowding as a result of increased prison numbers and a reduced capacity. In R v Ali (Arie) [2023] EWCA Crim 232, the Appellant sought to over-turn his sentence of immediate custody on the basis that he should have received a suspended sentence.

During the Court of Appeal's judgment, reference was made to an announcement in Parliament about 'Operation Safeguard'. This involved the Government requesting the use of 400 police cells to hold people who were remanded in custody or serving prison sentences in the adult male prisons. The justification for this was because of “a surge in offenders is coming through the criminal justice system, placing capacity pressure on adult male prisons in particular.”

In the case of Ali, the Court determined that the sentence should have been suspended. This was quite an unusual step as the usual approach of the Court of Appeal is that whether to suspend a sentence is a matter for the Sentencing Judge's discretion. The Court indicated that they had taken into account the issue of prison overcrowding when determining whether or not to suspend the sentence.

As a factor, this can be used in support of reducing a sentence of imprisonment but also in favour of imposing a suspended sentence rather than a sentence of immediate custody. The principle took effect from 20th February 2023. The focus of the principle is on shorter sentences. The key section is Para 22:

This factor will principally apply to shorter sentences because a significant proportion of such sentences is likely to be served during the time when the prison population is very high. It will only apply to sentences passed during this time. We have identified above the starting point for the relevance of this consideration for sentencing, which we take to be the implementation of Operation Safeguard 14 days after 6 February 2023. Sentencing courts will now have an awareness of the impact of the current prison population levels from the material quoted in this judgment and can properly rely on that. It will be a matter for government to communicate to the courts when prison conditions have returned to a more normal state.”

The Government have not been able to indicate when they expect the issues of overcrowding and Operation Safeguard to end, as such there is no end date for the principle set out in Ali.

The principles in Ali have already been deployed in cases in which Rhys is instructed. Rhys recently represented SK who was charged with a third drink driving offence in three years, all offences having been approximately 3 times the legal limit. SK was in breach of a suspended sentence by virtue of him committing the third offence. Rhys successfully persuaded the Crown Court, having appealed a sentence of immediate custody imposed by the Magistrates Court, that it was appropriate to impose a further suspended sentence.

Nitrous Oxide - The Government's New Ban

Mon, 27 Mar 2023 13:04:44 GMT

Since 2016, it has been an offence to supply Nitrous Oxide (also known as Laughing Gas), in plans announced today (27th March 2023), possession of the substance will also be unlawful.

The Psychoactive Substances Act 2016 had created the offence of Supplying Psychoactive Substances, this includes Nitrous Oxide also known as Laughing Gas. The Government has now announced as part of wider ranging proposals that they will mean that possession of the substance will now be an offence. The Psychoactive Substances Act provided a maximum sentence of seven years imprisonment.

The Home Office had previously asked the independent Advisory Council on the Misuse of Drugs (ACMD) to provide an opinion. As a result of their analysis, ACMD said nitrous oxide should not be banned under the Misuse of Drugs Act 1971. Despite this, the Government has proceeded to ban possession of the substance. The Drug Science Scientific Committee says a blanket ban "is completely disproportionate" and "would likely deliver more harm than good".

Scientific evidence suggests that there is around one death per year in the UK from around 1 million N itrous O xide users (a comparison with alcohol would be that around 28,000 deaths happen per year in around 40 million users of alcohol). Nitrous oxide is regularly used as an anaesthetic in medicine and dentistry, and as a gas for making whipped cream in cooking.

The law in respect of drugs possession has been settled since the Misuse of Drugs Act 1971. It is not widely known that in most circumstances, being under the influence of a controlled substance is not an offence - however, possessing such a substance is.

The change in the law is a useful reminder that the definition of 'possession' is regularly misunderstood.

The Courts have held that there are two elements to possession, the physical fact of possession and the mental element. The meaning of physical possession is understood as having 'custody or control'. This will include when another individual has possession of an item but it is under the Defendant's control.

By way of example, If a person orders a controlled drug, directing that it be sent by post to his or her address, the person is in possession of that drug from the time it arrives through the letter box.

A person does not possess something of which that person is completely unaware. If a drug is slipped secretly into someone’s pocket, the person is not in possession of it .

Form 963 - What Should I Do?

Wed, 22 Mar 2023 12:51:19 GMT

The Police are now serving Form 963s more regularly, especially in cases involving allegations of Failing to Stop and Failing to Report. Completing it correctly is essential and a failure to do so may be a criminal offence.

Where the Police establish that there has been a Road Traffic Collision, they will often serve a Form 963 rather than a request for driver details. If there has been an accident or damage caused, the 14 day Notice of Intended Prosecution requirement may not apply.

What does the form tell me?

The form will include the alleged offences that are being considered for charge, these are all discussed on the Motoring Law section of this website.

It will also inform you of the location, date and time of the alleged offence.

Do I have to reply?

These notices have the same effect as a Section 172 request for Driver Details. As a result, a failure to respond can lead to the imposition of 6 penalty points or a sentence to the level of the substantive offence. As such, there is a positive duty to respond to the form and to complete it to the best of your knowledge.

However, it is important to note that Section 112 (which underpins Section 172) only relates to driver details. If you read the Form 963 carefully, it makes clear that only failing to provide the identity of the driver renders you vulnerable to prosecution.

What about other information?

Once you accept that you were the driver, that is the legal requirement satisfied. However, the Police will be seeking information about how the alleged accident/collision occurred. This is an opportunity to set out why a collision was not as a result of your actions and to explain why (if indeed this is the case) the accident was not reported.

It can be very important to ensure that this document is filled out accurately and carefully. It can be used as a Prosecution exhibit if the Police choose to charge the driver. The form is not being completed under caution so often it can be possible to seek to exclude the contents of the document.

How do I return the form?

You should return the form in the manner prescribed, as with Section 172 notices the Courts have held that failing to return properly can amount to an offence.

What else can be done?

This stage is an excellent opportunity to draft representations as to why you should not be charged with a criminal offence. These can be drafted with legal assistance and often mean that the proceedings are taken no further.

This is particularly useful if there is a clear defence to any of the charges that are being investigated. It can ensure that the proceedings are taken no further.

Witness Anonymity

Tue, 21 Mar 2023 10:29:33 GMT

Georgia Harrison recently waived her right to anonymity in the proceedings before Chelmsford Crown Court. Here, Rhys discusses the law in this complex area.

The introduction of the Youth Justice and Criminal Evidence Act 1999 (“YJCEA”) provided substantial protection for witnesses.

Section 46 of the YJCEA enables courts to make a reporting direction in relation to adult witnesses which prohibits any matter relating to the witness to be included in any publication during the lifetime of the witness if it is likely to lead members of the public to identify the individual as a witness in criminal proceedings.

It should be noted that this application can only be made by a “party to proceedings”. This is generally limited to the CPS and the Defence.

The Court will need to be satisfied that the witness is eligible for protection, the test being that the quality of evidence/level of co-operation by that witness is likely to be diminished by reason of fear or distress on the part of witness in connection with being identified by members of the public as a witness in the proceedings.

There are various factors set out in Section 46 (4) that would be taken into account when determining an application.

Specific Sexual Offences

The court has relevant powers under the Sexual Offences (Amendment) Act 1992. The victim in a case of rape or one of the sexual offences listed in the 1992 Act is entitled to 'anonymity' in the press.

Once an allegation of one of the relevant offences has been made, nothing can be published which is likely to lead members of the public to identify the victim. The offences listed in the 1992 Act include most offences under the Sexual Offences Act 2003.

This is what the starting point was in respect of Ms Harrison. However, she chose to waive that right and to have her identity made public.

If the offence charged is one of those listed in the schedule, the reporting restrictions are automatic, and no application is required. The Independent Press Standards Organisation’s guidance is extremely strict in respect of anonymity for those victims of sexual offences.

Witness Anonymity

A witness will ordinarily be required to give his or her name at the beginning of examination-in-chief. The Trial Judge can exercise their discretion to depart from this procedure in appropriate cases pursuant to the Coroners and Justice Act 2009. Sections 76 – 85 deal with anonymity during an investigation, this is limited to a very narrow range of offences. These do not extend to sexual offences and we are now past this stage in any event.

Section 86 sets out the rules relating to Witness Anonymity Orders as repealed and replaced, albeit identically, in the Criminal Evidence (Witness Anonymity) Act 2008. Again, these can only be applied for by the Prosecution or Defence. These orders can include any of the following:

that the witness's name and other identifying details may be—
withheld;
removed from materials disclosed to any party to the proceedings;
that the witness may use a pseudonym;
that the witness is not asked questions of any specified description that might lead to the identification of the witness;
that the witness is screened to any specified extent;
that the witness's voice is subjected to modulation to any specified extent.

The Conditions for Witness Anonymity

Condition A: That it is necessary either to protect the safety of a witness or to prevent serious damage to property; or to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).

Condition B: That the order is consistent with a fair trial.

Condition C: That the importance is such that it is in the interests of justice for the witness to give evidence and either the witness would not give evidence without the order or there would be real harm to the public interest if the witness were to give evidence without the order being made.

Single Justice Procedure Notice

Mon, 20 Mar 2023 12:45:14 GMT

The Criminal and Justice Act 2015 introduced Single Justice Procedure Notices as an expedited way to bring charges against defendants.

A Single Justice Procedure Notice ("SJPN") can only be used in the Magistrates Court, as such, the summary time limit applies. If the charge is laid then the Court may produce a SJPN which allows for the case to be decided without a hearing.

Time-Limits

The first matter to be aware of is that the charge must still be laid within 6 months of the offence date. As a result, except in certain circumstances, proceedings will be time-barred if they are commenced outside of the time limit.

It is vitally important to complete a SJPN within the time limit stipulated, this will be 21 days. If you do not complete the SJPN the Court will proceed in absence and in almost all circumstances convict the Defendant without a hearing. This can lead to a disqualification and/or a substantial fine being imposed.

The Process

Once the Form has been completed, a single Magistrate will consider the contents with a legal advisor and make directions. If there is a guilty plea then the matter can proceed to sentence, if there is no plea then it can be proved in absence.

If a Not Guilty plea is entered by post, the Court will either fix the case for a case management hearing or fix a trial date.

Pleading Guilty

If you are intending to plead guilty to the offence, then the form is still very important as the contents will be used to determine the sentence. This will include the imposition of a victim surcharge and an order to pay the costs of a prosecution.

The financial means section must be completed honestly and accurately. However, there are certain approaches that should be taken to ensure that the fair and proportionate financial penalty is imposed.

It is also appropriate to include mitigation within any guilty plea. This can include character references and information about the offence. In many circumstances, it is possible to serve a sentencing note alongside the SJPN which sets out the approach the Court can take. Rhys is regularly instructed to advise on the completion of SJPN forms and given there is no need for a hearing, costs can be low - often, it can mean that the decrease in financial penalty is greater than the fee.

If you are sentenced in absence, you can appeal your case to the Crown Court and have a full hearing.

Pleading Not Guilty

If you plead Not Guilty, it is right to ensure that the case is properly case managed. It is also possible to take this as an opportunity to draft representations which can lead to the case not being pursued, this happens regularly and Rhys' recent case news shows various examples of this.

The Court will then make various directions, including about the service of prosecution evidence. The CPS will need to be serve witness statements and the exhibits that they rely on. They will also need to serve unused material.

It can be very helpful to get legal advice at this stage, it will mean that a Preparation for Effective Trial form can be completed and the case is started on the front-foot. If the CPS fail to comply with the directions or to disclose material it will often mean that the case is brought to an end.

Can I request a hearing?

It remains an option to request a Court Hearing. This can be useful if there are particular circumstances in the case which mean it needs to be dealt with particularly carefully.

What if I've missed the SJPN deadline or I didn't know about the pack?

If you have been convicted in absence or when you were unaware of the proceedings, you can make a statutory declaration, apply to re-open proceedings or to appeal the case to the Crown Court

Disclosure and Why it Matters

Fri, 17 Mar 2023 12:10:59 GMT

Disclosure can be a vital tool in defending a criminal case. It can be used to bring an end to proceedings. As such, it's vital to have an understanding of the process and the approach that the Courts should take.

What should be included in the Initial Disclosure?

The duty of initial disclosure arises following the entry of a not guilty plea, whereupon the prosecutor must review the material held by them and apply the disclosure test.

The IDPC is not initial disclosure or advance disclosure, the information should be sufficient to enable pleas to be taken or to inform allocation decisions.

The IDPC will be served prior to the first appearance in the Magistrates Court. It is now requested by email from the inbox of the relevant prosecuting authority.

What is the Disclosure test?

The disclosure test is contained in section 3(1)(a) CPIA:

The prosecutor must –

disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.

In Barkshire [2011] EWCA Crim 1885, the court indicated that such material included:

“… anything available to the prosecution which may undermine confidence in the accuracy of the evidence called by the prosecution, or which may provide a measure of support for the defence at trial.” [Para. 9]

In H [2004] 2 AC 134, the House of Lords made clear that section 3:

“… [did] not require disclosure of material which is either neutral in its effect or which is adverse to the defendant, whether because it strengthens the prosecution or weakens the defence.” [Para. 17]

If no such material exists, the prosecution are obliged to provide a written statement to that effect to the accused [section 3(1)(b) CPIA] and to the court officer [CrimPR 15.2].

What is Prosecution Material?

“Prosecution material” is defined as material which the prosecutor possesses or has inspected under the provisions of the CPIA. [Section 3(2) CPIA]. The meaning of prosecutor is broad, it includes any prosecuting authority so therefore includes the Police and the NCA.

“Third party material” is defined as material held by a person, organisation or government department other than the investigator or prosecutor. [Para. 53 AG’s Guidelines]

Schedule of unused material

In addition to providing material which meets the test contained in section 3 CPIA, prosecutors are required under section 4 CPIA to serve a schedule of unused material on the defence.

The schedule of unused material should be served either at the hearing at which a not guilty plea is entered or as soon as possible following a formal indication from the defence that a not guilty plea will be entered at the hearing [Para. 10.1 CPIA Code].

A schedule of unused material will be served by the Stage One date in the Crown Court, which is 70 days from the date of sending (from the Magistrates Court). The PTPH will be held ordinarily 28 days after the first appearance, it must be within 35 days of the first appearance under the CPR.

Defence Disclosure

There is no obligation to provide a defence statement in the Magistrates’ Court. However, once the prosecution has complied – or purported to comply – with initial disclosure the defence may serve a defence statement.

At first appearance, the Court will require the defence advocate to identify an issue if a Not Guilty plea is pursued. You may be pushed in respect of this. The best approach is to be as broad as possible. Some possible examples are as follows:

In any event, the defence are required to identify the real issues in the case in accordance with the overriding objective contained in CrimPR 1.1. [See Robinson v Abergavenny Magistrates’ Court [2007] EWHC 2005 (Admin) paras. 27 to 29]

Defence statements

If a defence statement is served, the same requirements apply as in the Crown Court; these are contained in section 6A CPIA.

After the service of a defence statement, a repeat exercise of the process for initial disclosure must take place. The investigator must look again at the material retained and draw the prosecution’s attention to any material which meets the disclosure test. [Para. 8.3 CPIA Code]

In the absence of a defence statement, the defence cannot make applications for further disclosure under section 8 CPIA and the court cannot make any orders for disclosure of unused prosecution material.

In the Crown Court, it is not mandatory to serve a Defence Case Statement (contrary to what Judges may say). However, there can be an adverse inference drawn against a failure to serve such a document or to serve a document late.

Stage Two will require the service of a Defence Statement. This is ordinarily within 28 days of the Stage One date or when the Prosecution comply with Stage One, whichever is later.

A defence statement should set out the following:

The facts on which the Defendant relies in their defence;

The matters which the Defendant requires to prove;

Any matters of law which the Defendant intends to raise;

Any requests for disclosure.

Applying for Further Material

If the defence have served a defence statement and the prosecution have complied, purported to comply or failed to comply with the procedure for further disclosure, the defence may apply under section 8 CPIA for an order for disclosure of material which should have been disclosed under section 7A CPIA.

What if the Prosecution Breach their Obligations or Fail to Comply with their Duties?

Blackstone’s Criminal Practice 2023 states that failure on the part of the prosecution to make proper disclosure may result in a defence application to stay proceedings as an abuse of process, the exclusion of material evidence or a successful appeal. [D9.28 BCP 2020]

The Magistrates Court Disclosure Review states:

“If the prosecution has failed to discharge its obligation by the date of trial, the prosecutor will not be entitled to continue, if s/he is satisfied that a fair trial cannot take place.” [Para. 36 MCDR]

However, the courts have increasingly emphasised the importance of having regard to the overriding objective of the Criminal Procedure Rules to deal with cases justly and to treat the prosecution and the defence fairly.

As a result, this can mean that where the Prosecution fail to comply with their obligations or they fail to disclose material that they should have done, a case can be brought to an end.

Stop. Freeze. Seizure under the Customs and Excise Management Act.

Mon, 13 Mar 2023 10:37:37 GMT

Rhys discuss the consequence of a failure to declare items when the UK Border Agency seize goods upon entering the jurisdiction.

Rhys was recently instructed to challenge the decision of the UK Border Force to seize three high value watches from a client at Stanstead Airport. T he client was simply visiting the UK on his return home, however, goods totalling £75,000 were seized and their return was refused.

In order to be liable to forfeiture pursuant to Section 78 (and 139) of the Customs and Excise Management Act 1979, the goods must be “commercial” pursuant to The Travellers’ Allowances Order 1994. This means that the goods must be “commercial” as indicated by the nature and quantity of the goods.

There are two routes of challenge. The first of these is to apply to the Magistrates Court on the basis that the seizure of the goods was unlawful. This must be done within one month of the seizure having taken place. Upon goods being seized, an individual will be provided with a Notice 12A which explains the options available to apply to set aside the seizure. If legality is not challenged within the time period, the legality of the seizure the things are duly condemned as forfeit to the Crown by the passage of time under paragraph 5 of schedule 3 of CEMA and any goods are confirmed as having been improperly imported.

Having had an opportunity of raising the lawfulness of the seizure in the Magistrates’ Court, one does not have a second chance of doing so at Tribunal or Statutory Review because the Tribunal does not have jurisdiction to consider it.

The only route of challenge once the period has passed is to apply for a restoration pursuant to Section 152 (b) of the Customs & Excise Management Act 1979. A Review will then be carried out in accordance with the provisions of sections 14 and 15 of the Finance Act 1994 which allows a reviewing officer to uphold, vary or withdraw the original decision.

The general policy for seized goods is that they should not be restored. They will not be restored where they have been mis-declared, concealed or there has been a deliberate attempt to evade duty. However, each case is treated on its own merits and there may be exceptional circumstances for which discretion may be used to depart from the policy.

It is necessary to take into account all relevant factors and disregard those factors which are not relevant as was set out Witowski v The Commissioners of HM Revenue & Customs. In light of this, it is important to ensure that individuals who have had goods seized are represented by those with experience of the rules surrounding seizure of goods.

The case of E Rider Ltd v The Commissioners for Her Majesty’s Revenue and Customs [2021] UKFTT 0209 (TC) provides that the decision not to return property must be proportionate. In the Rider case it was held that a relevant consideration can be the duties that fell due on the items and the question of knowledge on the part of the individual who had possession of the goods. Where an individual is found not to have acted dishonestly it will often be disproportionate to order forfeiture.

One argument pursued by Rhys was that it was disproportionate to forfeit the entire value of the goods where the only taxable portion of the value would be VAT. This would apply to all goods purchased and brought into the UK that are subject to VAT alone and is an argument that should be deployed in almost all cases. It may also be possible to offer to pay the duties that were due (if they were due) in order to secure the return of the goods.

It is important to be aware that where goods were simply entering the UK before exiting the jurisdiction, there are no taxes that fall due. It is for this reason that Rhys is well placed to assist with a detailed knowledge of the application of customs taxes upon items being temporarily possessed in the UK rather than technically ‘imported’.

The key thing to be aware of is that this is a complicated area of law. Those who have goods seized upon entering the country should be reluctant to simply surrender those goods. By acting quickly and allowing for a challenge to legality and a subsequent application to restore goods, those who have goods seized can ensure the proper return of items. This is best achieved through the instruction of a specialist legal team at an early stage.

How to Reduce Your Disqualification from Driving

Fri, 10 Mar 2023 16:03:31 GMT

A lesser known statute means that you can apply to reduce your disqualification after you have been convicted and sentenced

It is not widely known that when a driver is disqualified for over 2 years, it is possible to apply to reduce the period of disqualification imposed. This is an application made to the Magistrates Court and should be made with supporting evidence.

Section 42 of the Road Traffic Offenders Act 1988 sets out the law to be applied when making an application to reduce disqualification.

The Magistrates Court will consider the following:

(a) the character of the person disqualified and his conduct subsequent to the order,

(b) the nature of the offence, and

If the disqualification is less than 4 years, you can apply to reduce your disqualification after 2 years have passed. If it is over 4 years but less than 10 years, the period before which an application can be made is 50% of the period of disqualification. If the period is more than 10 years, then an application can be made once 5 years have passed.

Applications under this section are rare and often, Courts will not have dealt with them previously. This is why it is important to ensure you have legal representation in place both before and during the hearing.

The character of the person since disqualification can be shown in many different ways:

- Abstinence tests (where a disqualification was imposed for drink/drug offences);

- Confirmation of medical treatment for addiction;

- Extended driving tests (conducted on private land).

It is also possible to show the continued impact of a disqualification, particularly if these facts weren’t known at the time the disqualification was imposed. For example, if you now require the return of your driving licence to maintain your employment or there is a change in your caring responsibilities.

An application under Section 42, properly prepared, has the ability to reduce a disqualification by months or even years. They can be particularly effective in circumstances where a driver has received a 3 year mandatory disqualification following a second qualifying offence (for example with two drink drive convictions).

Rhys has experience in this area and has been successful in seeking to reduce disqualifications on the basis of subsequent conduct and the other circumstances of the case.

Fresh Evidence in the Court of Appeal

Mon, 06 Mar 2023 11:58:32 GMT

A look at the rules applied to Fresh Evidence after conviction

On 12 ^th February 2016, John Porch was wrongly convicted of Blackmail, he received a sentence of 5 years imprisonment. On 19 ^th November 2020, after having served his sentence, the Court of Appeal quashed Mr Porch’s conviction.

This case shows the importance of properly challenging your conviction and instructing solicitors to investigate those matters which can potentially prove your innocence.

The proceedings against Mr Porch were serious, they alleged that he had violently assaulted and threatened to kill the complainant.

There were a number of telephones seized during the investigation. These included those belonging to the Defendants and the Complainants. The Defence asked repeatedly for these to be downloaded and analysed, for various reasons the prosecution failed to do that.

The Court of Appeal stated during the hearing that “There is no general obligation on the police or the prosecution to arrange for the forensic interrogation of every mobile phone that is seized from a suspect in a criminal case; but there may be cases in which it is apparent, or becomes apparent that a mobile phone which the police have retained may contain information of relevance, including information that may potentially assist the defence. This was such a case.” These remarks demonstrate the importance of instructing a legal team that will fearlessly seek disclosure of mobile phone evidence and properly pursue this disclosure, as should have taken place in Mr Porch’s case. The Crown Prosecution Service and the Police are under-funded, for that reason they will often be reluctant to analyse mobile devices.

Mr Porch’s first challenge was to seek access to the mobile devices seized as part of his case. The Police are under a duty to investigate all reasonable lines of enquiry, there were a catalogue of errors in Mr Porch’s case that meant this did not happen. Thankfully, he was able to obtain this material after his conviction.

The second challenge is Section 23 of the Criminal Appeal Act 1968. It is this legislation that governs whether or not ‘fresh evidence’ can be brought before the Court of Appeal. There are four matters which the Court of Appeal will consider:

(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;

(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

In respect of mobile telephone evidence, the accuracy of the material when it is properly downloaded and analysed cannot be disputed.

The material in Mr Porch’s case substantially undermined the alleged ‘victim’. There can be no doubt that where a witness’ mobile phone contains material that undermines their credibility in respect of the offences it will be admissible,

Finally, the Court will consider whether, in the light of the fresh evidence, the convictions are unsafe. That can be tested by asking what impact that evidence might have had on the mind of the jury, or whether there is a real possibility that, if defence counsel had been in the position to use that material at trial, the jury would have arrived at a different verdict.

The reality of the test applied by the Court of Appeal is that if they find the fresh evidence would have the effect that the verdict of the jury would now be ‘unsafe’ i.e. there is a real possibility they would have arrived at a different verdict, they will allow the fresh evidence to be admitted.

You may be concerned that because so much time has passed since your conviction that the Court will not extend time. It is right that there are clear time limits in place for bringing an appeal. However, where your conviction appears unsafe it will ordinarily be in the interests of justice to extend time and so this may not be as much of an issue as you would expect.

As for Mr Porch, the prosecution indicated at the conclusion of the hearing that they would not seek a re-trial. As such, the Court of Appeal quashed the convictions and Mr Porch was able to quite properly clear his name.

If you have been wrongfully convicted and think there may be evidence that can clear your name then contact Rhys for a consulation.

The Right to Be Forgotten: Filtering of DBS Checks

Sun, 26 Feb 2023 15:56:15 GMT

Rhys discusses recent changes to the DBS approach to filtering

In 2013, the UK Government introduced the ‘filtering’ concept to the Disclosure and Barring Service previous conviction disclosure. This had the effect that certain convictions were no longer disclosable such as those received as a youth. There were certain time limits introduced whereby after 6 years cautions would be filtered and after 11 years convictions would be filtered.

There were a number of exceptions to this rule. There are certain offences which will never be filtered from a DBS check, these include serious offences of violence and sexual offences. There was also a rule where if a custodial sentence was passed, regardless of whether it was suspended, or where an individual had more than one conviction then no conviction on their DBS check would be filtered.

The filtering rules have been criticised since their introduction on the basis they produce an inconsistent result. Arising out of this was the 2019 Supreme Court decision in R (on behalf of P, G & W) v Secretary of State Home Department [2019] UKSC 3. It was held that the serious offence and two conviction rule led to disproportionate interference with Article 8 ECHR rights.

In light of this decision, in July 2020 the UK Government conducted a review of the filtering rules and the effect that they have. These reforms were introduced on 28th November 2020 to strike a more appropriate balance between the interests of the individual and the protection of the wider public. There are two principal changes. Firstly, any caution/conditional caution/reprimand/warning received by an individual as a youth will now be filtered, regardless of the offence. Second, the ‘multiple conviction’ rule will no longer apply, as long as the offence is not an exempt offence (custodial sentence/serious offence).

It’s important to be aware that where an offence is filtered from a DBS check, an employee is not required to disclose it. Whilst these offences remain on a police record, an organisation must be clear that when carrying out a DBS check for employment purposes any offence that has been filtered should be ignored.

The new regulations were introduced by amending the Police Act 1997, in particular Section 113A.

Even where a caution is not filtered from a DBS check, an individual still has options to seek the deletion of any such entry. It is possible, in certain circumstances, to have a previous caution entry expunged from an individual’s record. It is also important to remember that even if an offence is filtered from a DBS check, it remains on a police record – likewise, these can be expunged.

In 2006, the Police introduced a policy called the ‘Exceptional Case Procedure’ which meant that no offences would now be deleted from the police record. This has now been replaced by the ‘Record Deletion Process’ as of May 2015, the ACRO guidelines set out the following examples of where a caution can be expunged:

- It can be proven that a recordable crime was not committed;

- Proven Alibi;

- The caution was incorrectly administered on one of the following grounds:

o The offender has not admitted the offence;

o The offender was not willing to accept the caution;

o There was not sufficient evidence to provide a realistic prospect of a conviction if the offender were to be prosecuted;

o The Police breached the Police and Criminal Evidence Act 1984 during the investigation.

- Another person is convicted of the offence;

- It is otherwise in the public interest for the caution / entry to be expunged.

It is rare that the ACRO will agree to delete a record. However, if they refuse then this decision can subsequently challenge this decision by way of judicial review.

A Note of Caution (Accepting and Challenging Cautions)

Mon, 23 Jan 2023 17:40:25 GMT

Cautions are a useful way of ensuring an out of court disposal. However, they carry risks and can appear on enhanced DBS checks.

When can a Caution be Offered?

In order to offer a caution for an offence, the following criteria must be met:

There must be sufficient evidence to meet the full code test i.e. that there is a reasonable prospect of conviction;
The Offender must have admitted the offence; and
The caution must be in the public interest.

The decision to administer a caution will be taken by the Police, there does not need to be a referral for a CPS charging decision.

It is settled law that before a caution can be administered, there has to be a clear admission by a defendant. The Home Office Circular 18/1994 entitled ‘ The Cautioning of Offenders ’ and the ‘ National Standards for Cautioning (Revised) ’ provides guidance on the approach that the police should take to cautioning. It states with the emphasis as in the original that:

If a Caution has been offered, can it be challenged?

The Divisional Court has made it clear in R (on the application of Guest) v DPP [2009] EWHC 594 (Admin) that, as with a conditional caution the decision to administer a simple caution may be judicially reviewed.

There are essentially two grounds on which an application for judicial review can be granted:

The decision is unlawful;
The decision is so unreasonable that no reasonable public authority would reach it.

It should be noted, that where a simple caution or conditional caution is quashed by the Divisional Court, the "slate" is, in effect, "wiped clean" Jones v Whalley [2006] UKHL. The caution no longer exists and the CPS should review the case again to determine the appropriate disposal. This may include prosecution if both stages of the Full Code Test are satisfied.

How Can I Set Aside my Caution?

If you feel you have accepted a caution incorrectly or there is fresh evidence, it is possible to apply to set aside your caution or to apply for it to be deleted from Police records.

A failure to comply with the requirements of the Home Office circular can justify the Administrative Court quashing the caution following judicial review proceedings. For example, this court may strike down a caution where no admission has been obtained. If one of the following are not met then an application is arguable and likely to succeed:

There must be clear and reliable evidence of a voluntary admission before a caution can be given;
The admission must relate to all the ingredients of the offence; and

In order to ascertain if there is such evidence of a confession, it is necessary to consider all the evidence of interviews with the person cautioned in order to determine if such an admission was made.

The time limit placed on a Judicial Review is 3 months from the date of the decision that is sought to be reviewed (CPR Part 54). This time limit can be extended only if there is “good or adequate explanation for the delay and that extending the time limit will not cause substantial hardship or substantial prejudice or be detrimental to good administration”.

What if the Police have Refused to Expunge my Caution?

The first step before seeking a judicial review should be to apply to expunge the caution, this can be done on the basis that it was wrongly offered, accepted or there was a breach of policy as set out above.

Mobile Phone Whilst Driving - the New Definition of Use

Wed, 30 Mar 2022 14:00:03 GMT

The Law has changed which means that the provisions relating to mobile phone use have become far stricter.

The Original Offence

In 2003, the Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 was introduced. This made it unlawful to use a mobile phone whilst driving. This amended the original legislation which were the Road Vehicles (Construction and Use) Regulations of 1986.

The Prosecution therefore needed to prove only that the device was a mobile telephone and the device was being "used" for interactive communication.

DPP v Barreto [2019] - the meaning of "use"

The position remained unclear because the legislation never defined the meaning of "use". This meant that different Courts took different approaches. This was until 2019 and the case of DPP v Barreto. The case of Barreto defined "use" as when the device was engaged in two-way data communication. This meant that, for example, if someone was taking a photo or checking the time no offence would be committed.

The New Amendments - The Broad Definition of "Use"

On 25th March , the legislation was amended. This was because the case of Barreto meant that there was much more scope for people to have a defence to the charge. The Government took the view that a mobile phone now did much more than interactive communication and so the legislation needed to be broadened.

This led to the introduction of The Road Vehicles (Construction and Use) (Amendment) (No. 2) Regulations 2022. When legislation is introduced, there are often explanatory notes attached. These notes are particularly important for this offence because they state that the offence “will cover any device which is capable of interactive communication even if that functionality is not enabled at the time". This means that even if the device is in flight mode, it is considered to be being "used".

As a result, even if a driver is only doing one of the following, they can still be charged with the offence:

illuminating the screen;
checking the time;
checking notifications;
unlocking the device;
making, receiving, or rejecting a telephone or internet based call;
sending, receiving or uploading oral or written content;
sending, receiving or uploading a photo or video;
utilising camera, video, or sound recording functionality;
drafting any text;
accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages;
accessing an application;
accessing the internet

What Defences Remain?

The new legislation did help to some extent, it made clear that there are some specific occasions when an offence is not committed:

Where a vehicle is stationary;
The device is being used to make a contactless payment which is received at the same time as payment is being made.

The explanatory notes also say that using a mobile phone for navigation will continue to be legal, as long as it is kept in a cradle and not in the driver’s hand.

It is also permissible to use a mobile device to make a phone call to the emergency services.

It is vital to have legal representation at an early stage so that if there is a defence, it is explored and the police are put on notice that you will be robustly represented.

What About Time Limits?

It is important to remember that the statutory time-limits apply to an alleged offence of using a mobile phone whilst driving. The Police should still inform the driver within 14 days that they may be prosecuted for an offence and proceedings must be commenced (i.e. the charge laid/requisition sent) within 6 months of the date of the offence.

Upskirting - The New Criminal Offence

Tue, 20 Jul 2021 16:39:48 GMT

Rhys discusses the relatively new introduction of the offence under the Voyeurism (Offences) Act 2019.

The criminal offence of ‘upskirting’ was created under the Voyeurism Act when it received Royal Assent in February. The Act was introduced on 12th April 2019 and so has effect from that date. If an individual is convicted of such an offence, they can receive a custodial sentence of up to 2 years and will be placed on the sex offenders register. The offence is brought pursuant to the Voyeurism (Offences) Act 2019.

There are two offences that are created by the Act.

The first is where an individual operates a device under the clothing of another. The ingredients of this offence, i.e. what would need to be proven, are as follows:

That the Defendant operated equipment under the clothes of another;
The purpose of this is to observe, where they would not otherwise be visible, for the purpose of either obtaining sexual gratification for themselves or another or humiliating/alarming/distressing the person of whose clothing the device is operated under:
Another’s genitals/buttocks; or
The underwear covering another’s genitals/buttocks.
And the Defendant does so without the other person’s consent or does not reasonably believe they would be consenting.

The second offence is where the Defendant records/takes an image beneath the clothing of another person. The ingredients of the offence are as follows:

That the Defendant records an image under the clothing of another;
The image is of, where they would not otherwise be visible, :
Another’s genitals/buttocks; or
The underwear covering another’s genitals/buttocks.
This is done with the purpose of looking at the image, or for another person to look at the image, for the purpose of either obtaining sexual gratification for themselves or another or humiliating/alarming/distressing the person of whom the photo is taken
And the Defendant does so without the other person’s consent or does not reasonably believe they would be consenting.

Changes to the Drugs Sentencing Guidelines

Fri, 12 Feb 2021 17:08:41 GMT

Rhys discusses the changes in the Sentencing Guidelines for drug offences

On 27th January 2021, following various consultations, the Sentencing Council issued new sentencing guidelines in respect of drug offences. These will apply to both the Misuse of Drugs Act and the Psychoactive Substances Act. The guidelines will take effect from 1st April 2021, but Judges are likely to take note of some of the changes in the intervening period, especially those relating to categorisation of role.

Whilst the starting points and ranges are unchanged, there are three key changes that arise in the new guidelines.

Financial Advantage in relation to Role

There has always been a lacuna in the approach taken during sentencing exercises, as to how an offender’s benefit should be treated. It has been unclear whether a ‘runner’ who earns very little, and may be funding their own habit, should be treated as having a lesser or significant role.

The Sentencing Council have now provided clear guidance on this issue. If an individual only receives a ‘limited’ financial advantage, then they are to be treated as lesser role, the guidelines specifically state that this includes where an offender is funding their own habit. Previously, these cases would have been treated as being between lesser and significant.

In order for someone to be treated as having a significant role, there must be evidence of ‘significant’ financial or other advantage.

The impact of this will be that runners and individuals who supply drugs to fund their own habit will receive lesser sentences.

Cannabis and Ecstasy Weights and Yields

There has been an increase in purity of ecstasy and expected yield of cannabis since the guidelines were introduced in 2012, the latter increasing from 40g to 55g.

The Sentencing Council have therefore amended the guidelines so that the guideline number of plants / weights in Categories 3 and 4 are reduced for cannabis. The number of tablets for each starting point when dealing with ecstasy has also been reduced. In Category One, for example, the starting point is now 7,000 tablets; whereas previously it was 10,000 tablets.

The Sentencing Council have also specifically stated that they will review the harm starting points every three years to ensure that they are properly updated.

Psychoactive Substances Classification

Through the introduction of the Psychoactive Substances Act 2016, various supply and possession offences were created. However, there have been no guidelines in place to assist when sentencing for these offences.

In respect of culpability, the factors to be considered are the same as those for drugs which are classified – with the same changes outlined above taking effect.

The starting point for harm does not deal with what the psychoactive substance actually is, instead focussing on the circumstances in which it is supplied. Category One is reserved for commercial operations or supply in a custodial setting; Category Two is street-dealing (the same approach as for Category three in Misuse of Drugs Act cases) and finally Category Three deals with ‘very small quantity’.

There is no distinction drawn between any named substance. The approach taken by the Sentencing Council to deal with this is an interesting one: rather than to take a ‘class’ based approach as with the Misuse of Drugs Act offences, the focus is on the effect the drug has. This is dealt with by the aggravating features, in that Judges should consider whether the end-user is exposed to greater harm than they are anticipating.

Summary

The clarity in respect of financial benefit is well overdue and many practitioners will be pleased to see that the definition provides that those offenders, previously between significant and lesser, will now firmly be treated as having a lesser role.

The changes in starting point are likely to have a fairly limited effect in reality but demonstrate an awareness that the guidelines need to have flexibility.

Finally, the new Psychoactive Substances guidelines are welcome, they provide much needed direction on starting points and how to categorise harm. However, they could have given more discretion to the Sentencing Judge in how to approach the specific type of psychoactive substance; it appears that whilst this was the intention it is not clearly formalised within the guideline.

The Section 45 Defence - Loophole or Lifeline

Mon, 14 Dec 2020 17:05:20 GMT

Rhys discusses the case of DPP v M and the impact on the Section 45 defence

The Court of Appeal and High Court have considered Modern Slavery cases and the Section 45 defence on a regular basis since its introduction in 2015. However, they had not, until DPP v M [2020] EWHC 3422 considered the issue of the applicability of the decision of the National Referral Mechanism (NRM) to criminal proceedings.

By way of brief recap, where a suspect/defendant is considered to be the victim of ‘Modern Slavery’ (i.e. exploitation/forced labour) they are referred to the National Referral Mechanism, a body of the NCA and referred to as the Single Competent Authority. The Single Competent Authority (SCA) will initially decide whether there are reasonable grounds to believe that the individual is such a victim (within 5 working days) before turning to making a conclusive grounds decision (within 45 days) – this decision being made on the balance of probabilities. The findings of the SCA are then recorded, and disclosed to the defence, in the form of a ‘decision minute’.

If an individual receives a positive conclusive grounds decision, the CPS will then apply their own policy and guidelines to determine whether or not the proceedings should continue. The NRM decision clearly plays a vital role in this determination, but what of the Jury/Magistrate’s determination?

In DPP v M, the High Court considered two separate issues:

Whether the decision minute of the SCA is admissible in criminal proceedings;

What evidential weight that decision has.

The factual background of DPP v M was that a young person (M) was arrested and charged with offences of Possession of a Bladed Article and Possession of Cocaine & Heroin. Following his arrest, M was referred to the National Referral Mechanism and they reached a conclusive grounds decision that M had been recruited, harboured and transported for the purposes of criminal exploitation.

The fact of the decision of the SCA was admitted into evidence as an agreed fact pursuant to Section 10 of the Criminal Justice Act 2003. The decision minute that underpinned this decision was exhibited into evidence and contained various factors regarding M’s background and his exploitation.

The District Judge heard the prosecution case, the Defendant did not give evidence. The District Judge was invited by the defence to conclude that in light of the burden and standard in R v MK (namely that the Defendant bears an evidential burden that the Prosecution must then disprove to the criminal standard) that the Crown had failed to disprove the Section 45 defence and so the defendant ought to be acquitted. The District Judge agreed with that submission and found M not guilty. The Prosecution appealed by way of case stated.

The first issue determined by the High Court was that of admissibility of the decision, notwithstanding that they were not specifically asked to by the lower court.

It was not disputed as to whether or not when arguing an abuse of process (i.e. relating to the decision to prosecute a defendant who has the benefit of a positive conclusive grounds decision) that the decision minute would be admissible. However, the Crown’s position was that the decision minute was both non-expert opinion and hearsay in respect of the factual determination as to guilt.

The starting point taken by the High Court as to admissibility was the willingness of the Court of Appeal to consider it as fresh evidence, such as in R v N [2019] EWCA Crim 984and R v S(G) [2018] EWCA Crim 1828. The Court clearly reached the view that there was no firm guidance as to admissibility.

The High Court in M concluded that the SCA (NRM) decision is admissible in criminal proceedings on the basis of the following:

The decision maker had expertise in relation to the issues;

The decision was based on a proper evidential foundation;

The decision could be considered against other evidence and the tribunal would make a decision as to weight – not admissibility.

In those circumstances, it was held that the decision of the NRM (or Single Competent Authority as it is now widely referred to) would be admissible by way of Section 10 admission.

The impact on the CPS policy was considered briefly by the High Court who held that the “weight afforded” to a decision of the SCA would clearly vary, as such there is limited impact.

The High Court next turned to consider whether the evidence of the conclusive grounds decision of the SCA was sufficient, of itself, to discharge the evidential burden on the defendant pursuant to Section 45. It is, at this juncture, important to consider what must be shown for a young person to benefit from the Section 45 defence:

Whether they committed the offences as a direct consequence of being a victim of exploitation;

Whether a reasonable person in their position would have committed the offences.

The decision of the SCA cannot address the second issue, this will be a matter for the tribunal in considering the other evidence in the case. In the case of M this requirement was met by reliance on evidence from social services as to his particular background and his relevant circumstances.

The High Court eventually concluded that the decision of the SCA, combined with the independent evidence of what was known about M, was sufficient to meet the evidential burden and as such the Prosecution were required to prove, beyond reasonable doubt, that the commission of the offences was not a direct consequence of the exploitation.

The case of M provides substantial guidance as to how the NRM decision should be approached in criminal proceedings. It lays bare the importance of seeking a referral to the NRM and the importance of providing written representations as to charge to the CPS upon receipt of a decision from the SCA. We may well see a change in CPS charging policy, and the application of the existing policy, as a result of the firm direction both as to admissibility and the decision’s weight in satisfying the evidential burden.

The Dangers of Released Under Investigation

Tue, 04 Aug 2020 16:16:15 GMT

Rhys discusses the risks of the introduction of RUI rather than suspects simply being on bail

The Policing and Crime Act 2017 and the 28-day time limit on bail was widely welcomed when it was first introduced. It was hoped that it would lead to a significant reduction in the uncertainty of people waiting to be charged, as well as for their alleged victims. The police would either have to charge the suspect within 28 days, seek an extension or ‘release under investigation’ or ‘RUI’. The reality has been quite the opposite. Statistics show that suspects now spend considerably longer under investigation than they ever did on bail, cases are simply lost in the system.

The implications are most striking on young people arrested on suspicion of criminal offences. The case of Knight made clear that procedural efficiency is of particular importance in cases involving youths. Under the RUI scheme, that procedural efficiency is clearly lost.

Three years on from the introduction of the legislation, fewer offences are being charged and the number of people ‘under investigation’ continues to grow. Covid 19 has made the backlog in charging decisions almost exponentially worse. The question for lawyers has been whether or not this delay amounts to a breach of Article 6 and whether any prejudice arises.

Jim Sturman QC was instructed to represent X who was charged with offences of Possession with Intent to Supply Class A drugs. The offences had been committed whilst he was a youth, but he was not charged for very nearly two years, and by the time he was charged he had turned 18. Mr Sturman QC made representations that it was not in the public interest to proceed, given the implications for X’s future in education and in employment, and in particular that he was no longer eligible for a referral order which if he had been given his conviction would have been spent and his future would be unaffected – importantly in the intervening 2 years he had been in no other trouble. The Prosecution agreed and offered no evidence against X.

Sadly, this is very rarely the case. Rhys Rosser represented TF in July 2019 before Woolwich Crown Court. TF had been arrested in May 2018, when he was 17, and those instructing Rhys (Leah Connolly of Sonn MacMillan Walker) had chased the CPS for a charge before he turned 18. Despite these efforts, it was not until 3rd April 2019 that a charge was issued. He was now an adult and so could not be dealt with by the youth court.

Rhys argued before HHJ Raynor QC at Woolwich Crown Court, firstly that the delay was such that under the provision of TBF it amounted to a breach of Article 6. HHJ Raynor QC acceded to that submission, given the clear importance in cases relating to youths.

Of course there is a second hurdle in an Abuse of Process argument, the need to show prejudice. Rhys submitted that in this case the prejudice was two-fold. Firstly that TF no longer benefitted from the protection of the Youth Court and second that he would no longer receive a mandatory referral order.

A referral order is the mandatory sentence in a youth court or magistrates’ court for most first time offenders who have pleaded guilty to an offence. TF was of good character and so, in the circumstances, would have received a referral order had his case been dealt with in the youth court. As TF was now an adult, a strict reading of the sentencing guidelines provides for a starting point of 4 ½ years.

The particular strength of a referral order is that once it is completed, it is considered spent for the purpose of previous convictions. This means it does not need to be declared. There is no sentence in the adult court that is able to mirror a referral order.

In light of Rhys’ submission, HHJ Raynor QC found that it was absolutely clear that TF would have received a referral order and “there is no sentence available that mirrors that in the Youth Court”. In those circumstances, HHJ Raynor QC stayed the proceedings. The Prosecution have not appealed the terminating ruling.

The case of TF and X show the importance of robust challenge to both the investigative and charging process. The use of RUI is unlikely to decrease, unless further indictments are stayed as a result of the prejudice caused by a system that is simply not fit for purpose.

Those who represent youths for drugs offences (that might perhaps be seen by teenagers as little more than a “rite of passage” with little, or more often, no, consideration of the consequences for their future) need to be alert to ensure they do not wait and allow a young person to be dealt with in an adult court. Nearly 40% of 16-year old teenagers admitted to using drugs in an NHS survey in 2019, an adult conviction for possession or possession with intent can have a devastating effect on a young persons future and because of the problems with the RUI scheme many youths are eventually processed in the adult court. Whilst a fair Judge might consider they should look for a comparable penalty to that a youth court would have imposed there can be no guarantee that sympathetic approach will be the norm.

Sanctions - Changes in the Face of Brexit

Mon, 23 Mar 2020 10:10:44 GMT

Once the UK exits the European Union, the Sanctions and Anti-Money Laundering Act 2018 (“SAMLA”)

On 18 ^th February 2020, the Economic Secretary to the Treasury upheld the decision of the recently established Office of Financial Sanctions Implementation to impose monetary penalties against Standard Chartered Bank. Although the sum was reduced, Standard Chartered are still required to pay the substantial sum of £20.47m.

The penalty arises out of restrictive measures imposed on Russian institutions and individuals involved in the annexing of Crimea and subsequent threats to the territorial integrity of the Ukraine. The purpose of the restrictions had been to limit access to Capital Markets and Lending facilities.

Standard Chartered were found to have engaged with a wholly owned subsidiary of Sberbank which was subject to the restrictions. The exception to the restrictions is where the facility was financing the import or export of non-prohibited goods in the European Union.

The estimated value of the transactions which were in breach of the Sanctions was £97.4m, this demonstrates the relative severity of the penalty imposed. This is particularly notable given Standard Chartered made voluntary disclosures, which resulted in a 30% reduction. Ordinarily, the OFSI would reflect voluntary disclosure with a 50% reduction but the actions of Standard Chartered were found to be the ‘most serious’ and so only attracted 30%.

This financial penalty imposed demonstrates the importance of ensuring Sanctions Policies are up to date and pro-active monitoring takes place. The principles of the OFSI in relation to voluntary disclosure cannot be understated and are reflected in the reduction applied to financial penalties. The OFSI remains a relatively new organisation and so principles and policies are rapidly changing.

The proceedings against Standard Chartered are brought pursuant to the EU regulations, which remain in place until 11pm on 31 ^st December 2020. Once the UK exits the European Union, the Sanctions and Anti-Money Laundering Act 2018 (“SAMLA”) will come into effect which represents yet another substantial change to the UK Sanction Regime. SAMLA gives the UK the power to autonomously implement new sanctions as well as lifting/updating existing ones.

The UK approach will continue to be ‘control’ driven in determining whether a designated person, ie those subject to transactions, is linked to a company/institution. The new regulations are drafted with a ‘thematic’ approach as well as being divided by jurisdiction, the current proposal is for the UN sanctions to form the Consolidated List. The four themes that have been identified in advance are:

- Chemical Weapons

- Counter-Terrorism

- Counter-Terrorism (International)

- Isil (Da’esh) & Al-Qaida

The UK will effectively adopt a stand-alone sanctions regime, rather than being driven by the EU. One area that is likely to develop is the UK adopting a ‘Magnitsky’ type approach to those suspected of human rights abuses and violations. This was confirmed by the Financial Times in January 2020. The US has already adopted such legislation, whereas due to the need for agreement throughout states the EU’s progress is likely to be far more limited.

The UK’s commitment to maintaining Sanctions monitoring after the exit from the European Union is typified by The Russia (Sanctions) (EU Exit) Regulations 2019. These regulations are likely to be substantially the same as the EU provisions, but with scope to change as the situation in Russia, and Ukraine, develops.

Suspicious Activity Reports - Less is More

Fri, 20 Mar 2020 18:49:58 GMT

Suspicious Activity Reports have become much more common in recent years, the Law Commission recently reported on their increased use.

SARs, or Suspicious Activity Reports, were effectively introduced as part of the Proceeds of Crime Act 2002 (“POCA”) and the Terrorism Act 2000. As a result of the UK Financial Intelligence Unit’s (“UKFIU”) guidance and the Criminal Finances Act, both introduced in 2017, there has been a substantial increase in the number of SARs made in recent years.

For those in the regulated sector, as soon as a suspicion arises, a SAR should be made. The test for suspicion is “more than merely a possibility” or more than “fanciful”, as defined in R v Da Silva [2006]. This low threshold, combined with the broad definition of “Criminal Property” contained within section 340 of POCA, has led to an increase of 10% in SARs filed from 2017 to 2018. This followed a 26% increase from 2016 to 2017. The UKFIU simply does not have the resources to manage this number of reports.

As it stands, the making of a SAR is a no-lose for the submitter. There is no downside to being overly cautious, which contrasts with the five year custodial sentence that can be received for a failure to disclose an offence in the regulated sector under section 331 of POCA. This may be a factor that has led to 94% of SARs being made currently receiving consent (either explicitly or as a result of the 7-day consent period expiring). The position is also disproportionate in that the impact on the end client (i.e. the subject of the SAR) can be hugely detrimental and can include freezing their accounts and/or seeking restraint orders against them.

In light of these problems, the Law Commission produced a report on 18 June 2019 considering the potential solutions. The Commission found that the key problem was as shown in the statistics - there are simply too many SARs being made. Furthermore, a number of those that were made did not meet the appropriate level for suspicion and were not appropriately drafted. For example, only 52% of the SARs submitted clearly stated the grounds for making the referral.

The core recommendation of the Commission is the need for further guidance and clarification, coupled with the introduction of an Advisory Board to guide this process. In particular, the need for a greater understanding of the Da Silva test has been mooted as an area requiring development. In my view, this is the crux of the problem, as shown by the fact that 15% of SARs sampled as part of the Commission’s review were considered unnecessary as they did not meet the suspicion threshold. This equates to a staggering £5bn sum which is invested in core compliance by UK Finance Members per annum, much of which is done so unnecessarily.

The UKFIU has already introduced a standardised online form to increase the quality of SARs and give greater confidence to those reporting their suspicions. The Commission has urged the Secretary of State to prescribe the form, which I anticipate will reflect the existing online form. The Commission also recommended for a single SAR to be reported for multiple transactions on the same account or related transactions, such as those relating to the same customer, instead of requiring the submission of separate SARs for each separate suspicious transaction.

There were various measures considered to try and limit the scope of reporting, which were designed to enable the National Crime Agency (“NCA”) to properly concentrate their resources. However, the Commission ultimately concluded that SARs should continue to be made for all crimes, which means that the problem of focus remains.

In respect of the end client, there are thankfully measures proposed. The proposal is to introduce the concept of ring-fencing under POCA, to give banks more proportionate powers (rather than simply the freezing of assets). This will enable the reporter to continue transacting with a client in respect of its ‘clean’ funds while the funds suspected to be the proceeds of crime are segregated. The maker of the SAR will also benefit from this protection, reducing the risk of damages being claimed as they were in HSBC v Shah [2012].

The sum of the reforms is that they do go some way to mitigate the problems with the current regime, in particular the financial loss caused to the subject of the SAR. However, the reforms do not deal with the main issues, namely the scope of referrals and the low threshold for making one. It may therefore fall to the Courts to move away from the Da Silva test, but that may take some time.

Regulating the Regulator: The FCA and the Collapse of London Capital & Finance

Fri, 06 Mar 2020 17:16:41 GMT

The world of ‘mini-bonds’ is one which has not found itself in the limelight before. That changed in January of last year when London Capital & Finance entered into administration leaving over 11,500 investors out of pocket. The estimated loss so far is around £236m.

One of the unexpected consequences of the collapse is the scrutiny that the Financial Conduct Authority has faced for their role, or lack thereof. The ‘mini-bond’ product is largely unregulated; they are very different to Corporate/Institutional bonds due to both their size (with trading starting at around £1,000), and the absence of any need for rating. They are also different to retail bonds as they are not tradable; mini-bonds are held to maturity regardless of the performance of the underlying company. This means that the safeguards offered by rating companies such as Fitch and Standard & Poors is worryingly absent.

The lack of regulation allowed London Capital & Finance to promise returns of between 6.5% and 8%. The mini-bond was available in the Innovative Finance ISA wrapper, approved by HMRC, and London Capital & Finance was regulated by the FCA. This led to investors feeling that their funds would be safe. When one considers where the funds went, such as on a £58m commission payment to Surge Financial (Oil Exploration in the Faroe Islands) and a private Helicopter, the financial returns were clearly a myth and the confidence of investors was misplaced. One can draw similarities between the structure of London Capital & Finance and the Collateralised Debt Obligations that led to the downfall of Lehman Brothers in 2008.

The impact is already starting to be apparent with Junior Finance Minister John Glen writing to lawmakers, stating that there will be a consideration as to whether the current regulatory regime for these securities issued by companies to consumers is appropriate. The SFO, working closely with the FCA, are also taking a very close interest in London Capital & Finance’s conduct, with five individuals already arrested and released under investigation including Paul Careless: the founder of ‘Surge Financial’ that marketed the mini-bonds to investors and who took the commission referred to above.

The more striking effect may well end up being that on the FCA. Serious concerns have been raised over the fact that the FCA had been warned about the activities of London Capital & Finance as early as 2015. Neil Liversidge, a financial advisor based in Yorkshire who had become aware of London Capital & Finance through a client, had written to the FCA warning them about the safety and promotion of the bonds as investments, stating that the bonds were worth “the square root of bugger all” and that the investment was unsuitable. Despite this warning, no action was taken until a month before the collapse when the FCA warned London Capital & Finance to withdraw their marketing as it appeared misleading. It took until 13th December 2019 for the FCA to freeze assets due to concerns about the running of the business.

An investigation has now been ordered by the Government and is well underway. The investigation is being led by Dame Elizabeth Gloster and is expected to focus on what led to the FCA’s failure to act and the changes that ought to be made in light of this. The investigation will also consider the regulation of mini-bonds and the associated marketing that was permitted.

The current guidance on the FCA regulation of mini-bonds is limited to say the least. This is partly because they represent such a small volume, individually, of trades and investments that they have not posed any serious issue. The main rule change will likely relate to the ‘packaging’ of unregulated products in a regulated form; this will result in much greater scrutiny of what forms the makeup of a product. It is doubtful whether we will see the introduction of ratings, simply due to the sheer level of resources required to manage such an exercise.

The FCA have already taken some steps by issuing advice to investors on the nature of mini-bonds and the need to seek investment advice, and the internal and external reviews may result in changes to the regulatory landscape. The consequences may also be far reaching for products such as P2P lending and e-currencies (particularly in light of Facebook’s recent launch of ‘Libra’ currency). There have been concerns since the rise of Blockchain over the high volatility of the trading price and the absence of any physical asset that underlies the transaction. If Blockchain’s value were to crash, there would be no asset offering any form of security. There are further similarities between mini-bonds and e-currencies due to their accessibility, which means that ‘residential’ investors are able to gain profits or make losses.

Whilst there has been no clear indication as to what changes are being considered, the reviews may well result in the introduction of regulations as to the providers of trading platforms, in addition to requirements of the products themselves. These may not only be financial, but also consider the security of the platforms’ technology, both in respect of the hardware and software on which they operate.

It is worth noting that the only previous inquiry that was carried out into the FCA was when the FCA subjected itself to an independent external investigation following the Co-operative Bank scandal. This led to a review of the prudential supervision of the Co-operative Bank, by the FSA, between 2008 and 2013. This had far reaching consequences which were preceded by the establishment of the Prudential Regulation Authority (“PRA”), which the investigation ultimately recommended. It may be that the FCA takes a similar step following this investigation, by introducing an ‘Innovative Finance Regulator’ which would deal with those products which are driven by the technological changes of the past 20 years.

Beyond the FCA, HMRC’s decision to grant ISA status will likely come into question. Administrators considering London Capital & Finance have already stated that they view the qualification process as having “fairly limited” requirements and that the application process is “not rigorous”. There may well be wholesale changes that follow, both in the way that ISAs are initially considered for qualification and how they are reviewed on a continuing basis. The exact nature of this remains to be seen, but it may well be that metrics which operate in a similar way to Risk Weighted Assets (i.e. the value of an asset balanced against the risk of such an asset) are introduced.

12 months on, the Financial Services Compensation Scheme (“FSCS”) declared on 9th January 2020 that London Capital & Finance had ‘failed’. As of 17th February 2020, a total of just under £2.7m had been paid by the FSCS to consumers. This is scant compensation for those customers who invested prior to LCF being authorised to carry out financial services business.

The FCA meanwhile have provided a limited update. They confirm they are continuing to investigate alongside the SFO ensuring that all reasonable lines of enquiry are being pursued. This clearly provides limited comfort to both investors and those with an interest in the future legislative scheme for alternate financial products.

Driving 101

Wed, 19 Feb 2020 00:00:00 GMT

Have you racked up points here and there, and now risk being a totter (12 points)? Or, have you committed an offence which carries potential disqualification?

Facing Disqualification

It is not uncommon to find yourself in a position where you have accumulated a substantial number of points and now face losing your licence. The dreaded letter has arrived saying that you are at risk of being disqualified and need to attend Court. This is when you have either committed an offence that carries a disqualification, or you have “totted up”. Here’s what you can do and how I can help:

Am I going to be disqualified?

Certain offences carry a mandatory disqualification, if convicted you cannot avoid being disqualified, unless there are “special reasons”. If you are in this position, or think you might be, you need to get a specialist Road Traffic Lawyer at the earliest opportunity. For example, I can assist in ensuring you are offered a Drink Driving Rehabilitation Course which can get your licence back 25% quicker than without.

Unsure if the offence carries disqualification? Some of those which carry automatic disqualification are as follows:

- Driving with excess alcohol (Drink Drive);

- Dangerous driving;

- Driving or attempting to drive when unfit through drink or drugs;

- Driving or attempting to drive with concentration of specified controlled drug above specified limit.

If you are a repeat offender, you may also find yourself in a position of being disqualified for a minimum of 3 years.

So What are Special Reasons and How do they Help?

A disqualification/ penalty points, can potentially be avoided or reduced if there are relevant and exceptional "special reasons". This is a high standard to reach, and is a legal argument, it is not related to the driver but the circumstances of the driver.

If any of the following apply to the circumstances of your driving, then you could avoid a lengthy disqualification:

- a mitigating or extenuating circumstance;

- not amount in law to a defence to the charge;

- directly connected with the commission of the offence;

- be one which the court ought properly to take into consideration when imposing sentence.

Special reasons will be exceptional, for example, if a vehicle is driven a particularly short distance or there is evidence of a genuine emergency. You should take Legal advice; or request a fixed fee conference to discuss if special reasons apply to your case.

Am I a "totter"?

This is when you have 12 or more penalty points on their licence. It is important to be aware that this is 12 points at the time of the offence , not at the time of the conviction. The period for the calculating points is 3 years, so if an individual, at any time during a 3 year period, reaches 12 penalty points they are at risk of being disqualified for 6 months. This disqualification is automatic and there is a presumption in favour of disqualifying for such a period.

There are two ways to try and ensure that you are not the subject of a disqualification:

- Exceptional hardship;

- Short-term disqualification.

Exceptional Hardship

A legal argument of exceptional hardship can be advanced by anyone who has reached 12 points. The impact of successfully arguing exceptional hardship is that you will not be banned for a period of 6 months, you will simply receive the penalty points. even though the result may be more than 12 points on a person's licence.

Exceptional hardship goes beyond simple mitigation. The Court must find that there is sufficient mitigation to justify not imposing the disqualification. Again, this legal argument requires careful consideration of the law, as well as the specific factors of your case. The Court may consider:

- The Court will not take into account matters relating to the offence itself, this is relevant to special reasons;

- For hardship to be “exceptional” it must be more than is normally suffered;

- The hardship suffered is not limited to the person who is actually being disqualified, it can include their family, employees or others who are wholly innocent;

- The test is deliberately subjective to allow for free interpretation by a Court (which means persuasive argument can play a part);

- Can the hardship be avoided, for example by paying a driver? This is why it is rare for celebrities and professional sportsmen to advance such an argument.

You cannot argue exceptional hardship on the same basis during a period of 3 years.

If you find yourself in a situation where you have 12 points, you should have a consultation to see whether there is merit in running a legal argument on hardship. You will also be given advice about the supporting documentation you will need. In order to argue exceptional hardship you will likely have to give evidence, and can be cross examined. This is much less daunting, and effective if you are represented. Closing submissions on the law are also then given on your behalf. It is for that reason that it will be advantageous to secure legal representation at an early stage.

Short Term Disqualification

Alternatively, there may be a legal argument that you should be disqualified for a shorter period. If you are planning to go travelling, or not to drive for a short while, a short disqualification of 7 – 28 days can be imposed alternatively.

This is a difficult legal argument to advance and is relatively underused, however, it is possible to run alongside other arguments. It can be particularly useful where there is hardship that falls just short of exceptional hardship

Summary

Being told that you are going to be disqualified from driving or are at risk of such a disqualification is a distressing time. It’s important to consider your options, because there are various steps that can be taken to try and shorten a disqualification or avoid one entirely. TAKE LEGAL ADVICE.

Timing is Everything

Wed, 09 Oct 2019 09:22:04 GMT

If you've not received a warning within 14 days - you could have an absolute defence!

The question I am asked most often is whether or not there is a time limit for the Police to start proceedings for a driving offence. The simple answer is yes!

It is a requirement that within 14 days of an offence being committed, either the driver or the registered keeper must be warned that they may be prosecuted. There are three ways that this can be done:

1. At the time of the offence, the driver is warned that there will be a consideration of prosecuting for an offence;

2. A summons is served within 14 days on the driver;

3. A Notice of Intended Prosecution (Section 172 note) is served on the driver or the registered keeper (by first class post, direct delivery or addressing and leaving at the address).

If the warning is given by way of a Notice of Intended Prosecution (NIP) then it must say what the offence is as well as when and where it happened.

You should be aware that there are certain situations where this does not apply:

- Where an accident has taken place;

- A fixed penalty notice has been given;

- The name and address of the registered keeper/the driver could have been obtained with ‘reasonable diligence’ (i.e. they couldn’t find out the name of the driver or registered keeper in time);

- The driver contributed to the failure to being identified.

This 14-day requirement is absolute, however, there is a presumption that it is complied with. This means that as the Defendant, the onus is on you to show that it hasn’t been complied with. For this reason, it’s vitally important that you seek legal advice.

In summary, if you have received a Notice of Intended Prosecution more than 14 days after your offence was committed, then you may have an absolute defence. Contact me now to arrange a fixed fee conference of for me to draft a letter on your behalf.

“Using” a Mobile Phone – Clarity at Last

Wed, 31 Jul 2019 20:14:59 GMT

Important Reading for Anyone Caught "Using" their phone at the wheel

The High Court has now provided guidance on what the Prosecution must prove for someone to be convicted of Using a Mobile Phone whilst Driving. They must prove that the device was engaged in a two way interactive communication function (i.e. using Data/Messages/Minutes).

Since 1st March 2017, anyone caught using their mobile phone whilst driving would receive 6 points on their licence, prior to then it had been 3 points. Celebrities are not exempt, in May of this year David Beckham pleaded Guilty to such an offence, becoming a ‘totter’ and receiving a 6-month disqualification.

As a result of the introduction of this harsher penalty, there has been a rise in those challenging the charges laid against them. The majority of these challenges has related to the definition of “use” and whether or not it is sufficient simply to be seen with a mobile phone.

The offence was introduced by Section 41D of the Road Traffic Act 1988, a time when mobile phones were relatively new and far simpler than they are now. It was unheard of to access the internet or send a photo by mobile phone. This means that the legislation has been out of date and poorly understood.

Regulation 110 of the Road Vehicles (Construction and Use) Regulations was introduced in 2003. It prohibits an individual from driving a motor vehicle on a road if they are using a handheld mobile telephone, or a device which performs an interactive communication function by transmitting and receiving data.

There has been dispute in the Courts for a number of years, as to whether or not a mobile phone must be engaged in an interactive communication function in order to be “used”.

The matter has finally been argued before the High Court in the case of DPP v Barreto, where the Court made a number of rulings which will impact greatly on prosecutions. In order to be performing a function, the device must be “being used to perform” such a function.

The key ruling is that the meaning of “using” is restricted to where a mobile phone is used to perform a two-way interactive function. It is not sufficient simply to be holding a mobile phone. On the basis of this ruling, the following would also not be considered “using” and so not an offence:

- Checking the time on the phone;

- Looking at photos whilst driving (as long as they are stored on the phone);

- Taking photos;

- Filming an accident (as was the ‘use’ in DPP v Barreto ).

However, a two way interactive communication function is not limited simply to making a phone call. It will include sending a text, searching the internet or using your phone as a sat-nav.

This ruling demonstrates the importance of seeking representation when you are charged with a motoring offence. There are undoubtedly various individuals who have pleaded guilty to the offence, when in reality they had a full defence to the charge. In many cases, this could have been avoided through consultation at an early stage.

However, a word of warning. There may now be a change in approach. The Police and CPS will react to this ruling, they will instead prosecute individuals either for ‘Careless Driving’ (which can result in disqualification) or ‘Driving in such a position that the driver cannot have proper control of the vehicle’ (3 Points). Once again, this shows the importance of obtaining expert representation.

Contact Rhys now if you are being charged with an offence, or if you have already been convicted to discuss your options.