Monthly Archives: October 2017
Can My Sentence Be Increased?
The sentencing process is the beginning of the end for many defendants. They can receive and accept their punishment and prepare to move on with their lives at the conclusion of any sentence imposed. For some, however, the anguish is not over as an appeal against the length or type of sentence might be looming because it is arguably an unduly lenient sentence.
Who Can Appeal?
The Attorney General and the Solicitor General have the power to apply for leave to appeal sentences for some offences to the Court of Appeal. This will be where the sentence is viewed as ‘unduly lenient’.
The Attorney General may become aware of any given case in different ways. it might be because the prosecution has referred it for consideration. Alternatively it might be because any other person, such as the victim or a member of the public, has brought it to their attention.
What Offences Does This Apply To?
There is a long list of offences which may be referred for consideration by the Court of Appeal.
- Any offence triable only on indictment. These will include, for example, murder or robbery. The provision also includes youths who are tried before the Youth Court for indictable only offences. More and more frequently, this will include serious sexual offences.
- A range of offences that are sentenced in the Crown Court. These will include offences of violence, sexual offences, drugs, immigration, slavery and trafficking.
- A range of terrorism offences.
Is There a Time Limit?
A notice of appeal must be filed with the Court of Appeal no later than 28 days after the sentencing hearing. There is no power available to extend this time limit.
What Happens If There Is an Appeal?
‘We first of all consider the question of whether to grant such leave. It is important in approaching such matters to understand the safeguards that Parliament thought were appropriate to build in to the departure from what was then the law that there no question of increasing a sentence arose to the new procedures that enabled such a reference to be made.
Those new procedures required a number of steps to be taken before any such sentence could be increased. The first was that the Attorney General had to consider the matter and decide for himself whether he considered the sentence to be unduly lenient.
The second was that he then had to exercise his discretion as to whether there should be a reference because he was given a power to refer and there was no requirement that he should do so.
The third matter was that the court then had itself to consider whether to accept and grant leave for the referral.
Thereafter the court has to consider whether it considers the sentence to be unduly lenient and the final safeguard is that the court has to determine for itself whether, even if it does consider it unduly lenient, it would be right in the exercise of its discretion to increase that sentence. Each one of those steps was clearly a step that Parliament thought to be a necessary safeguard in changing the law.’
What Is an Unduly Lenient Sentence?
It will not be easy to spot such a sentence. This is because the sentencing exercise is always fact specific. In cases where there are sentencing guidelines in place it may be easier to identify unduly lenient sentences. This will not always be the case however. The task is often much more difficult when there are no guidelines. Alternatively it may be a case where there is particularly powerful mitigation.
The Court of Appeal test for undue leniency is:
‘A sentence is unduly lenient where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.’
What Happens If a Sentence Is Found to Be Unduly Lenient?
Where the Court considers the sentence unduly lenient, it has a discretion as to whether to exercise its powers:
‘Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where, in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned.’
If you have instructed VHS Fletchers in your case after your sentencing we will give you immediate advice if we have concerns that there may be a complaint that you have received an unduly lenient sentence. Unfortunately, the process is out of our hands however and we have no control over whether or not a reference is made.
In the event of an appeal, a great deal of work can be done on your behalf to prepare your case for this next stage. Thorough preparation can make all the difference as to whether or not the court of appeal interferes with your sentence.
If you face an appeal on the basis that you received an unduly lenient sentence or are concerned about any aspect of criminal law or sentencing then do not hesitate to contact your nearest office to speak to a criminal law specialist.
Alternatively you can use the contact form below.
Monthly Archives: October 2017
Nottingham solicitor advocate Jon Hullis recently represented a client who was facing a prison sentence for a minimum of 5 years for possession of a disguised firearm.
It was alleged that he was in possession of a stun gun or taser disguised as a torch. In the event he ended up with a lesser charge and a much better result following his guilty plea.
In Possession of a Stun Gun
Jon’s client was an HGV driver employed by a Polish haulage company. He made regular journeys through the channel tunnel.
Whilst he was at a service station on the M1 his vehicle was subject to a routine check by the police and DVSA officers. Although his tachograph and other driver’s records were in order the police found an item in his cab. This had the appearance of a torch but the police soon realised that as well as being a torch the item was a stun gun capable of delivering a shock of 8000 volts.
Free and independent legal advice
As a result our client was arrested. Although he chose to seek free and independent legal advice at the police station he asked for the duty solicitor rather than VHS Fletchers. As a result a different firm represented him in the police station.
In interview he answered questions and told the police that he had bought the item from a market stall in Poland for 20 zloty or approximately four pounds. Our client admitted knowing that it was both a torch and a stun gun. He explained that he had it with him due to the threat he faced from people trying to hide in his lorry when he passed through Calais.
As he was regularly frightened of being attacked so hoped that the stun gun would keep attackers away from him if need be. It was kept inside his cab. He had no intention of using it in this country as by the time he entered this country the danger would have passed. He stated that as items such as this were so freely available in his home country he did not realise that it was illegal to have the item in the United Kingdom.
Disguised firearm charge carried a minimum five year sentence
Our client was charged with being in possession of a firearm disguised as another object. At the initial hearing in the Magistrates Court his case had to be sent to the Crown Court. This was because the charge as it stood could only be dealt with at the Crown Court.
He had continued with the same firm of solicitors who had represented him in the police station. When the case had been sent to the Crown Court that firm had told the court that the defendant would be pleading guilty to the charge as it was currently drafted.
As a result, he ran a very real risk of receiving a sentence of five years. That sentence could only be avoided in exceptional circumstances. The admissions made in interview that he knew the nature of the device and that he had it for protection were unhelpful in mitigating any such sentence.
Transfer of representation
Our client was not happy with advice that he had received in both the police station and then at the Magistrates’ Court. The apparent inevitability of a guilty plea had been accepted and this fact had been communicated to the court. It appeared that no consideration had been given to alternative and lesser charges.
As a result, the client made contact with us following a recommendation from a prominent member of the local Polish community
The Law on Stun Guns
Under Section 5 Firearms Act 1968 stun guns are classified as firearms. They are always illegal to possess. This is remains true even in a private place such as your home. Possession of a stun gun alone can be punished by a prison sentence of up to ten years.
The situation for any client is more serious where a stun gun is disguised as another object. These are often mobile phones or torches. In those cases the court must impose a sentence of at least five years in prison. This remains the case even where someone has no previous convictions and pleads guilty at the earliest opportunity. The usual rules as to a reduction in sentence for credit for a guilty plea does not apply.
A judge will only be able to impose a lesser sentence where there are “exceptional circumstances”. The very wording indicates that such cases will be very rare.
In some cases it will take a close inspection to reveal that an item is in reality a stun gun. In the case of this particular client the item had “50,000 KV” clearly printed on the body of the item. The metal electrodes were also visible. Although the item was also a working torch, there was nothing specifically done to conceal the fact that it was a stun gun.
Representations to the Prosecutor
After carefully considering the law and the circumstances of this case, Jon spoke with the prosecutor. He made representations that this was not a stun gun disguised as a torch. It was actually a stun gun that also had a torch function. Jon’s research had shown that this was argument was supported by reference to it being widely for sale across Europe as a stun gun. It was used by both the police and military as a stun gun with a torch function so not a disguised firearm.
Jon was able to persuade the prosecutor of his view of the item. As a result the prosecutor accepted a guilty plea to an offence possession of a stun gun. The fact that it was no longer a disguised firearm meant that the judge would have greater flexibility on sentence.
Understandably our client was desperate to be able to return to Poland. He lived there with his wife who was pregnant with their first child. Jon mitigated on his behalf with the aim of securing the most lenient sentence possible to allow him to return home.
The Judge agreed that this was an unusual case because it was plain that our client did not realise it was an offence to possess this item. He had no intention of using it in this country. He said this case should act as a warning to other drivers who may consider carrying these items.
In the event, however, our client received a two year conditional discharge. This is an order where no punishment is imposed. Providing our client commits no further offences during the period of the conditional discharge then this will be the end of the matter. The conviction will be spent.
Our client was obviously immensely relieved with this outcome and was incredibly grateful for the advice and representation he received from Jon. This was a particularly pleasing outcome bearing in mind where the likely sentence for the disguised firearm offence prior to VHS Fletchers becoming instructed solicitors.
Unfortunately, legal aid would not have been transferred in this case, As a result, our client felt it necessary to fund our representation privately. Where you have the benefit of legal aid it will usually be best to remain with that provider. In this case, however, our client clearly felt that it was not.
Contact a criminal defence expert to prepare your case
If you require advice from an experienced criminal solicitor in Nottingham about a disguised firearm then please contact Jon on 0115 9599550. Alternatively, we have similarly experienced solicitors across our offices in the east midlands.
Alternatively you can use the contact form below.
Monthly Archives: October 2017
Released, But Not Free
For many offenders a prison sentence is a grim reality. It is a punishment that must be served. It will impact not only on the single individual but in many cases on their family as well.
As a result, when the day of release comes it will be a significant moment. The door on the punishment has closed. It is an opportunity to draw a line under the past and move on. For many offenders, however, the release from custody comes with conditions. These are in the guise of license conditions that must be abided by. There is the threat of a return to prison if not obeyed in full.
The government has announced changes to the release license regime that come into effect on 13th November 2017. Prison law specialist Irene Tolley outlines the changes below.
New Licence Conditions Category
In the future, Release licenses will be able to restrict ‘specified conduct or specified acts’.
The government intends that conditions are to be put in place for particular offenders that will:
• Prohibit gambling
• prevent the drinking of alcohol
• ban the use of some social media websites
In planning for an offender’s release, a supervising officer will create a release plan. This will include the consideration of whether additional licence conditions are appropriate. These conditions are then submitted to the Governor of the releasing prison. They will review their application on behalf of the Secretary of State. Only once the Governor confirms the conditions do they become legally enforceable.
Why Prohibit Alcohol Consumption?
“The consumption of alcohol is a known factor in recidivism for some offenders. In 2004, the Prison Reform Trust published a paper which estimated that 63% of male offenders and 39% of female offenders within the England and Wales prison estate admitted to hazardous drinking before being imprisoned. At the same time, the estimated cost of alcohol-related crime and public disorder was £7.3 billion per year. A condition to require an offender not to consume alcohol would set an expectation for an offender on licence and compliance with that condition would be subject to recall.”
Can I challenge my Licence Conditions?
To be lawful, any licence condition, whether standard or additional, has to be necessary and proportionate to manage the offender’s risk of reoffending and risk of harm. It is always open to an offender to challenge the imposition of a licence condition by way of an application for judicial review. This would be where the offender considers that the condition is not necessary or proportionate to manage the risks of his case.
How We Can Help
We can assist with any sentencing related query. Please contact either Irene at our Nottingham office on 0115 9599550 or Derby crime and prison law solicitor Rosamunde Benn at Derby on 01332 546818.
Alternatively you can use the contact form below.
Contact - Prison Law
Monthly Archives: October 2017
Modern Policing – Lights, Camera, Action
Police forces across England and Wales are preparing for a rollout of ‘Body-worn Cameras’ or Bodycams. The government has announced that prison officers will shortly be assisted by this new technology as well.
What are Body-worn Cameras?
The evidence from these cameras can be used to support a prosecution. Some argue that with officers and others aware that their actions could be caught on camera it should result in a positive effect on the behaviour of both the public and the police.
Is behaviour calmed when a camera is present?
It might be generally accepted that we behave better when being watched. For example, we are less likely to speed past a roadside camera or get involved in unlawful activity if we know we are being observed by CCTV.
In 2011, researchers at Newcastle University posted pictures of a pair of male eyes and the caption, “Cycle Thieves: We Are Watching You.” Bike thefts decreased by 62 percent in those locations. They remained the same elsewhere.
A study in Rialto, California (USA) in 2012 appeared to show dramatic changes in police behaviour as well following the use of body-worn cameras. Complaints against police officers were down 90% compared to the previous year. Some critics, however, have been sceptical of this study. In part this was because only fifty-four officers participated.
That caution did not result in a slowdown of the deployment of body-worn cameras. By 2015 95% of US large police departments had deployed BWC or had committed to doing so.
Now, police forces in England and Wales are following suit.
The Rialto findings seemed to accord with common sense, but a new eighteen month study of more than 2000 police officers in Washington (USA) was published on 20th October. This disclosed ‘almost no effect’ on police officer behaviour.
Are BWCs a waste of money then?
This is a controversial question, and there may be many reasons for the Washington findings.
Other arguable benefits of BWCs are:
- Detecting rogue officer behaviour after the event
- Accurate recording of evidence
- Building community trust in the police
Another new study will be published in the November 2017 issue of the Policing journal. In this research 249 people were interviewed. They had had recent encounters with officers wearing cameras. Those who were aware of the cameras perceived the encounters as more “just” than those who were not.
It would appear that the jury remains out as to the effect of Body-Worn Cameras by the police. Supporters claim that there are definite benefits for both the police and the public. Detractors cite privacy concerns, sizeable public expenditure to fund the cameras and a lack of evidence to support their continued deployment.
What is clear to us is that we see the evidential worth of cameras in an increasing number of cases. Such evidence must, however, be analysed carefully. It would be wrong to believe that ‘the camera never lies’. We often find that video evidence is taken out of context. It can be distorted. On occasions when it might be thought to be helpful to the defence it can go missing.
Contact a criminal defence specialist to discuss these issues
We have recent experience of dealing with cases where the footage from Body-worn cameras was decisive in putting forward our clients’ defences.
If you face criminal proceedings you will want to instruct a criminal defence lawyer who will ensure that evidence such as bodycam footage is analysed and deployed effectively in your defence.
We have offices across the East Midlands in Nottingham, Derby, Chesterfield, Mansfield, Ilkeston and Newark. All of our office numbers can be telephoned 24 hours a day 7 days a week to ensure free and independent legal advice is given to those detained in a police station.
Alternatively you can use the form below to make contact.
Monthly Archives: October 2017
Nottingham solicitor advocate Andrew Wesley and Senior Crown Court litigator Lisa Sawyer were instructed in the defence of a taxi driver facing trial for a sexual assault before Nottingham Crown Court.
Careful preparation and dialogue with the prosecutor resolved the case in our client’s behaviour.
An allegation of sexual assault
Andrew’s client was in a serious position. Although the taxi driver was of good character, the CCTV in his cab was not working on the night of the incident. Further, there was his DNA on the chest of the complainant in the case.
The allegation had been made within minutes of the incident taking place. The complainant had phoned 999. She was clearly distressed during the call. She had repeated the allegation when officers came to her address, and made three separate written statements in support of the case.
The complainant maintained that during a taxi journey our client had continuously quizzed her about her tattoos and piercings. At the end of the journey he had pulled up her top and underwear and sexually assaulted her. She attended court for the trial fully willing to give evidence.
Free and independent police station advice
Our client had made the sensible choice of seeking legal advice prior to his police interview. Crime solicitor Jameel Malik was present in both sets of police interview to provide advice and assistance.
Jameel advised that his client answer the questions put to him by the police. He did so confirming:
- there had been no inappropriate questions
- the complainant had pulled up her own top
- she was drunk
- it was she who had then pulled him onto her chest
- she had given him her real mobile phone number
He was charged with the offence at the conclusion of the investigation. The case was allocated to the Crown Court for trial.
An investigation of the evidence
Our client would gain a benefit in proceedings if there was evidence in support of his case. At first glance the evidence against him would appear very strong.
As the case developed, however, and as additional material was served a very different picture began to emerge.
The DNA evidence had been presented by the police as being decisive in our client’s case. Further examination showed that, hidden in the detail, was confirmation that the evidence could also be explained by the account that our client had given in interview.
In interview, he had explained the nature of the conversation he had during the journey. It was innocuous, but the detail he gave meant that the answers could only have come from the complainant. This began to undermine the account she had given.
Helpful bodycam footage
Bodycam footage showed what the complainant was wearing. It showed that tattoos on her legs would not have been obvious. This undermined her suggestion that our client had immediately seen these tattoos and made comment. Further, the footage showed that he would not have been able to see tattoos on her chest. This was important as she had said that he had mentioned them and asked to see them.
Listening to the entirety of the bodycam footage revealed that the complainant agreed that she had searched her bag for money as described by our client. Although it was hard to hear, she also told police that it was she who had lifted her top to show her tattoo. This was exactly what our client had said in interview.
Key evidence stored in our client’s mobile phone
An insistence on an inspection of our client’s mobile phone also showed that he was telling the truth about how he came to have the complainant’s phone number. There was no evidence in the call list that she had given him a false number that he had tried to ring. Instead, the log showed that she had called him and he had saved her number in his phone using her name. Again, he had said this in his police interview.
This information was only revealed through a detailed examination of the unused material in the case as well as the exhibits. Transcripts of the 999 calls and bodycam footage were prepared to go before the jury.
No evidence offered so a not guilty verdict
Ultimately, when the problems and inconsistencies with the prosecution witness were set out to prosecuting counsel on the day of trial there was no real alternative but for the Crown to offer no evidence. There was no longer a realistic prospect of conviction once there was full consideration of all of the available material.
Crown Court legal aid to fund defence of taxi driver
Our contract with the government permits us to provide representation at the Magistrates’ and Crown Courts under the criminal legal aid scheme. The description of how we dealt with the preparation of this case no doubt shows you that even when, such as in this case, a client has the benefit of legal aid we still provide our usual high quality service.
Although those there will be a few cases where a client in not financially eligible for Crown Court legal aid, these will be few and far between.
Contact a lawyer expert in Crown Court defence
All of our office phone numbers are answered 24 hours a day, 7 days a week to provide emergency advice and representation to those detained by the police. Please do not hesitate to call.
We can also be contacted using the form below.
Monthly Archives: October 2017
Government Signals Tough Sentencing Changes
Over the last few days, the government has announced proposals to introduce new offences and increase sentencing for a range of other offences.
One of our criminal law solicitors, Graham Heathcote, explained the proposals on Radio Nottingham on October 16. You can listen to his interview hear about the proposed changes to the road traffic offences and sentences.
Here is his written summary of the proposals.
New laws will make it an offence to deliver a knife sold online to a private residential address. In the future it is proposed that all online purchases will have to be delivered to a collection address. This will allow verification of the age of the purchaser when they collect the item.
The possession of an offensive weapon in a public place is already a criminal offence. Changes in the law will see an additional 19 items, including flick knives and push daggers, banned in private places such as residences as well.
Some limited defences will be allowed by the Government. These will rely on cultural, artistic or religious use of the items. There will also be common sense exemptions such as museum displays.
A new definition of ‘flick knife’ is also proposed. This is intended to broaden the number of weapons that fall into this classification category.
It is already an aggravated offence to possess knives and offensive weapons on school premises.
The definition of ‘school premises’ does not currently cover higher and further education establishments. These might be sixth form colleges or universities. The intention is to change the definition to ensure that such institutions also fall within the legislation.
Threats with blades
The government intends to amend the existing offence of threatening with an article with blade or point or an offensive weapon. This is currently set out in section 139AA of the Criminal Justice Act 1988.
The law as it stands requires the prosecution to prove that a defendant was threatening another with the weapon “in such a way that there is an immediate risk of serious physical harm to that other person”.
The plans will strengthen this offence. An attempt will be made to ensure that if anyone threatens another person with a knife the offence is committed when the victim reasonably fears they would be likely to suffer serious physical harm. This test will be based on how a reasonable person would respond to such a threat. It will not depend on whether the victim was objectively at risk of immediate serious physical harm.
Acid and Corrosive Substances
The perception is that violent attacks using acid and other substances is on the rise. As a result the government argues that a new offence is justified.
The Government proposes to create a new offence of possessing a corrosive substance in a public place. This offence will be modelled on the current offence that can be found in section 139 of the Criminal Justice Act 1988. This offence is possessing a bladed article in a public place.
It is envisaged that similar defences to the knife possession offence would also apply to the proposed corrosive substance possession offence. These would include where a person could prove they had a good reason or lawful authority for having the item in a public place.
Additionally, the government proposes to introduce a new offence preventing the sale of the most harmful corrosive substances to those under 18. The intention is to mirror the existing knife legislation. It is in response to the significant proportion of known offenders who are under 18. The introduction of this offence would make it harder for those under 18 to obtain products containing the most harmful corrosive substances. These liquids are of particular concern and are being used as weapons to inflict life-changing injuries.
The government has identified two particular types of firearms that of concern
- large calibre (0.50) rifles; and
- rapid firing rifles
Both types of firearms are currently available for civilian use under general licensing arrangements. There are concerns, however, about their potential for serious misuse and loss of life were they to fall into the wrong hands. The proposal is that these two types of firearms should be subject to the stricter controls under the existing provisions of section 5 of the Firearms Act 1968. These prohibit a number of types of firearms from civilian use.
It is proposed that the maximum penalty for causing death by dangerous driving, or causing death by careless driving while under the influence of drink or drugs, be increased to a maximum of life imprisonment.
Should this change is implemented it will lead to new sentencing guidelines being issued which will likely increase the typical sentence in all such cases.
Very few cases, however, would ever merit a sentence of life imprisonment.
There is also a proposal to create a new offence of causing serious injury by careless driving.
This is likely to be one of the most controversial proposals as there is a stark contrast between the lower level of culpability involved in such offending and the unintended harm that can arise.
The government appears to want to send out a tough message about certain types of criminal behaviour. It must be remembered however that sentencing is a fact-specific exercise where the personal mitigation of the defendant must also be considered.
In cases where a guilty plea is inevitable, or a finding of guilt has been made, it is our job to present to a court the best possible mitigation to ensure the lowest sentence possible.
If you face any criminal proceedings please contact one of our expert solicitors at your nearest office. All of our office numbers operate 24 hours a day, 7 days a week to ensure that you receive emergency advice when you most need it.
Alternatively, use the contact form below.
Monthly Archives: October 2017
What are the offences?
There are two drug driving offences:
- Driving whilst unfit through drugs
- Driving whilst over the limit for certain drugs
What is driving whilst unfit through drugs?
To be guilty of driving whilst unfit, the prosecution must prove:
- You were driving (or attempting to drive or in charge of) a vehicle on a road or public place; and
- You were unfit to drive; and
- This was due to any drug (medication or illegal)
What is driving over the drug limit?
Since 2015, it has been an offence to drive (or attempt to drive or be in charge of a vehicle) on a road or public place with certain drugs in your blood above fixed limits. Limits have been set for 17 drugs, covering legal and illegal drugs.
Illegal drugs and the drug driving limit
The limits for illegal drugs are set very low, so that even trace amounts can lead to a prosecution. The limits do not provide any indication that the driver’s behaviour or ability to drive are affected by the drug. As these drugs are illegal, effectively a zero tolerance approach has been adopted.
Legal drugs and the drug driving limit
These are prescription or over-the-counter medications. Limits are set at levels where there is an increased risk of road traffic collision and are higher than would be expected in someone who has taken a normal dose as medicine.
What about prescription drugs?
For example, people taking Lorazepam as a prescribed medicine would normally have a blood concentration of 10-20 µg per litre of blood. The legal limit is set at 100 µg/L.
Even if your blood sample is over the limit for a drug, providing you are not impaired by it, there is a defence if the drug has been taken for medical purposes. This applies if:
• the drug has been prescribed or supplied for medical purposes; and
• it was taken in accordance with the instructions given; and
• the driver was lawfully in possession of it.
The defence cannot be used where the driver did not follow the instructions about the amount of time that should elapse between taking the drug and driving.
What are the penalties for drug driving offences?
If convicted of a drug driving offence, the court must impose a disqualification from driving for at least 12 months. This can only be reduced or avoided if the court finds that there are “Special Reasons” relating to the offence. The court cannot impose a ban for less than 12 months based on the hardship that would be suffered as a result of it. In addition, the court can impose the following:
• Prison for up to 6 months
• Suspended Prison Sentence
• Community Order
• Unlimited fine
What should I do if I am accused of drug driving?
These are technical offences and involve complicated procedures for the police to follow. Very often, there are mistakes made which mean there is a lack of evidence. Defence experts may be able to challenge the prosecution evidence.
If you would like advice about a drug driving allegation, contact one of the solicitors at your local office or Nottingham road traffic solicitor Graham Heathcote on 0115 9599550 or use the form below.
Monthly Archives: October 2017
Derby crime solicitor John Young recently represented a client alleged to have assaulted his partner. Success hinged on a prosecution res gestae argument.
The prosecution allegation
The complainant alleged that an incident had taken place outside her home address early in the morning. Our client’s vehicle was said to have been parked outside at the time.
It was alleged that our client had pushed the complainant into the road causing her to fall over. She alleged that this resulted in two broken bones in her foot. Our client was also alleged to have threatened to kill her whilst threatening her with a screwdriver. He was said to have snatched her mobile phone from her and then left the scene.
John’s client denied the allegations. He accepted that he had been at the scene but maintained that the complainant was the aggressor. Our client then described how she had tried to hit him but had fallen over in the process, landing in the road. He denied that he had made any physical contact with her.
Our client provided an explanation explaining why he was in possession of the mobile phone and the screwdriver.
In the event the victim declined to provide a forma statement to the police. She did not support the prosecution. The allegation as set out above was set out in the complainant’s first contact with the police.
Prosecution depended on res gestae argument
Despite the lack of a formal complaint, our client was charged. The prosecution case was to be based on a 999 call made twenty minutes after the incident was said to have taken place. CCTV footage showed the delay in making the call.
Bodycam footage from police officers captured an initial complaint but this was nearly fifty minutes after the incident. There was a statement from a delivery driver who saw the complainant falling the road. He could not say how or why she fell.
As no-one saw the incident aside from the complainant and the defendant, the prosecution had to rely on hearsay evidence to try and secure a conviction. This evidence would come from the 999 call and the bodycam footage. Surprisingly, the prosecution did not make an application to admit this hearsay evidence prior to the trial date.
At the beginning of the trial the prosecution made clear the basis upon which they were presenting their case and made the hearsay application. The prosecution conceded that if the application was unsuccessful then the prosecution could not proceed.
Problems with the hearsay evidence
There were several problems with the res gestae argument:
- the bodycam footage showed that by the time the police arrived the victim was not “so emotionally overpowered” that the possibility of concoction or distortion could be disregarded
- During the 999 call the complainant initially stated her leg was broken. after questioning the operator establish that the victim only believed this because her leg was ‘painful’
- It was clear from the bodycam footage that the leg was not broken.
- During the 999 call the complainant alleged that she had taken the screwdriver from the client in order to stop him stabbing her with it. Police evidence showed that the screwdriver had been recovered from the client’s vehicle when he was arrested
- The timing of the incident showed that the complainant’s suggestion that this had been a chance encounter could not be true.
- The CCTV footage showed that the complainant was not telling the truth when she said she had been assisted by a stranger while she lay in the road.
- The footage also showed that, despite her allegation, she had not been swung around and then pushed by our client.
- There were further significant differences between the accounts given in the 999 call on captured on bodycam footage.
A detailed analysis of the evidence by the defence
John’s detailed analysis of the evidence meant that he was able to use all of the above features of the case to argue against the admission of this purported res gestae evidence. This included a thorough understanding of the timeline in the case and all of the inconsistencies between the different parts of the evidence.
He argued that it would be wrong to conclude that the complainant was so emotionally overpowered that there could not have been concoction or distortion.
The Magistrates agreed with John’s submissions. They refused to allow the Crown’s application to admit any of this evidence under section 118(1)(a) Criminal Justice Act 2003 and the relevant case law.
Once the Crown’s res gestae argument had been refused the Prosecution accepted that they had no further evidence to place before the Court. No evidence was offered and the charge was dismissed.
Defendant’s Costs Order Made
Our client was not financially eligible for Legal Aid. He had funded the matter privately. John successfully applied for a Defendant’s Costs Order which permitted recovery of a proportion of the private costs paid.
Contact Derby Crime Solicitor John Young
If you face allegations before the Magistrates’ court you will need an experienced solicitor with an eye to detail to ensure that your best case is placed before the court.
You will also want to instruct a solicitor who understands all of the relevant law and is fully prepared to make the arguments that you need to win your case. This will particularly be the case if there is to be a difficult res gestae argument.
Please telephone John Young for an appointment on 01332 546818 or use the contact form below.
Monthly Archives: October 2017
On the 8th October 2017, Nottingham regulatory solicitor Martin Hadley attended, by invitation, the Pharmacy Show at the National Exhibition Centre in Birmingham.
It was clear from the show that the pharmacy profession brings together a great many different individuals and organisations. The exhibitors included the manufacturers of highly technical items for use in the pharmacy. These included robotic dispensing systems and data collection software programmes.
There were a significant number of manufacturers of pharmacy products including natural products, over the counter items and prescription only medications.
Professional bodies were represented including the Royal Pharmaceutical Society and the Association of Pharmacy Technicians. Furthermore, the association bodies of the Pharmacist Defence Association and National Pharmacy Association were there to help and advise their members.
It was enlightening to hear views on the profession from Julian de Bruxelles from the Independent Community Pharmacist publication. Similarly, Charlotte Basely from Today’s Pharmacist was able to give Martin an insight into current issues in the profession.
Martin was able to meet with fellow professional colleagues Jennifer Kelly and Kulzinder Garcha of HRC Law, and Laura Pyatt of Ansons Solicitors. They all offer valuable legal services to the pharmacist. These include related commercial work such as property and business sales and purchases, as well as advice on employment matters.
As a result of the meeting, Martin was able to highlight the complementary service that he is able to offer in advising on any regulatory issues that can arise.
Martin found the fair and extremely useful day so intends to return next year.
Contact Nottingham regulatory solicitor Martin Hadley
Nottingham regulatory solicitor Martin Hadley is in a position to provide his services nationwide. If you wish to discuss a case with him then please telephone him on 0115 9599550 or alternatively you can email him here.
Monthly Archives: October 2017
Our client had been convicted after trial before the Magistrates of resisting a police officer in the execution of their duty. Although she had only received a fine, this in combination with the prosecution costs meant that she had a substantial bill to pay at the conclusion of her case.
She was aggrieved with the outcome of the Magistrates’ Court trial. She maintained that she was neither violent towards officers or attempted to resist arrest. At the conclusion of the incident she had a broken arm.
The prosecution case
Police officers had attended an address to locate an offender. Upon finding our client they discovered that she was subject to a warrant from the Magistrates’ Court for her immediate arrest in relation to road traffic offences. Our client had already made arrangements with another police officer to surrender to that warrant.
When the police entered the property she was asleep in bed. She had been drinking, and accepted that she was tired an annoyed by what was an unnecessary arrest bearing in mind her earlier conversation with the police.
The police maintained that she became abusive and then aggressive when the police attempted to arrest her. It was alleged that she attempted to bite a female officer and then tried to resist arrest. The police maintained that during their struggle to arrest her she had fallen off the bed and broken her arm.
Fault was said to lie with our client rather than the officers.
The reason for the Crown Court appeal
Our client’s version of events was very different. She maintained that she had been handcuffed to one wrist while still on the bed. A male officer had then taken old of the handcuffs while she was on t the bed. He twisted her arm behind her back and pulled her off the bed with force.
As a result she fell to the floor breaking her arm. The injury was extremely serious. Her arm was broken in three places. She had to have an operation and metal plates were placed in her arm. At the time of her appeal she still had no feelings in her upper arm. Nerve damage had resulted and she remained on morphine and other medication.
The officer said to have caused the injury had been dismissed from the police for gross misconduct in relation to a separate incident. He had given false statements in other cases. Despite that the prosecution still wanted to proceed with the appeal, but did not want to rely upon that officer at any appeal.
An automatic right to appeal
Our client’s automatic right to appeal the conviction from the Magistrates’ Court to the Crown Court provided us with an opportunity to review whether additional evidence ought to be before the Crown Court on appeal.
At Jon’s suggestion, Sarah obtained a medical expert who prepared a report after liaison with our client’s treating consultant. The report confirmed that the injury could not have been caused by a fall or slip off the bed. There would have had to have been a twisting of her arm, consistent with her account, to cause the injury. This increased the likelihood of her success with her Crown Court appeal.
Prosecution abandoned its opposition to the appeal
The report was served upon the Crown Prosecution Service who sensibly indicated that they would no longer be contesting the appeal. The matter was listed before the Crown Court and the Magistrates’ Court conviction was overturned.
Contact us about your Crown Court Appeal
While there are always risks in pursuing a Crown Court appeal of a Magistrates’ Court conviction in terms of sentence and costs you will always want to seek our advice quickly.
The time limit for submitting any appeal is very short. Legal Aid might be available, as it was in this case.
Your nearest office can be found here. Alternatively you can use the contact form below.