Monthly Archives: May 2018
So called ‘Rogue landlords’ are frequently in the news for allegedly charging tenants too much money, refusing to release a deposit or being responsible for an unlawful eviction.
What is meant by ‘unlawful eviction’?
The statutory starting point is the Protection from Eviction Act 1977.
Section 1(2) states when someone is guilty of this offence of unlawful eviction:
“If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he is guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”
Elements of the offence of unlawful eviction and key players
The terms ‘eviction’ and ‘deprivation’ have been interpreted in a relatively intuitive manner by the courts, a key factor being the lack of access.
In Yuthiwattana (1984) 80 Cr App R 55 the court looked at differing levels of access deprivation and stated:
‘In our view “permanency” goes too far. For instance, if the owner of the premises unlawfully tells the occupier that he must leave the premises for some period, it may be of months or weeks, and then excludes him from the premises, or does anything else with the result that the occupier effectively has to leave the premises and find other accommodation, then it would in our view be open to a jury to convict the owner under subsection (2) on the ground that he had unlawfully deprived the occupier of his occupation. On the other hand, cases which are more properly described as “locking out” or not admitting the occupier on one or even more isolated occasions, so that in effect he continues to be allowed to occupy the premises but is then unable to enter, seem to us to fall appropriately under subsection (3)(a) or (b) , which deal with acts of harassment.’
Someone does not necessarily have to be a tenant to be a residential occupier. It is possible to gain protection as a contractual licensee, as set out in the case of Thurrock Urban District Council v Shina (1972) 70 LGR 184.
But I had a good reason to deprive someone of their access, how do I show this?
If you are accused of unlawfully depriving someone of access to their property in the manner described above, it is for you to prove that you “believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”
This would only avail a landlord of a defence where the tenant had removed all physical signs of possession from the premises and where the landlord had good reason to believe that he would not be returning. The reason for this is that “possession” is synonymous with “occupation”, meaning something more than physical presence.
Before possession can be obtained of residential premises, in all cases other than where there has been voluntary vacation, there must be a court order. This will also be the case for tenants protected by the Rent Acts or Housing Act 1988, as well as for restricted contracts where a licence only is granted.
What are the penalties for this offence?
The offence carries a maximum punishment of two years’ imprisonment and/or an unlimited fine and can be tried in both the magistrates’ and crown courts.
How can we help
If you are concerned about allegations of unlawful eviction or other alleged offences relating to landlords and tenants, then please contact crime and regulatory solicitor Martin Hadley on 0115 9599550 at our Nottingham office. Alternatively you can use the contact form below.
Although we won’t be the firm that will have drafted any letting agreement that you have, we are a firm that specialises in criminal defence and will therefore ensure that any allegations arising from any tenancy will be strongly defended on you behalf. This will include advice and representation in any interview under caution, whether with the local authority or the police, and court representation.
Contact
Monthly Archives: May 2018
Our clients will turn their mind to what punishment they might receive if they plead guilty to, or are convicted of, a criminal offence. In most cases the thought is whether it might be a prison sentence, a community penalty, or a hefty fine and perhaps not a directors disqualification.
While the substantive penalty is, of course, important, on occasion there are other things more serious to consider. In previous articles, we have looked at issues such as confiscation, and in this article, we consider a company directors disqualification.
What do business people need to consider?
The Company Directors Disqualification Act 1986 provides that a court may make a disqualification order where a person is convicted of an offence which is concerned with the mismanagement of a company.
There are a wide number of scenarios catered for under the Act. As a result the actual circumstances must be considered with care. In certain situations, offences committed abroad will also qualify, as set out in section 5A of the Act.
What conduct is relevant?
Both the internal and external management of the company are relevant to section 2(1) of the 1986 Act (Corbin (1984) 6 Cr App R (S) 17). A director’s general conduct in running the affairs of the business is also relevant (Georgiou (1988) 10 Cr App R (S) 137).
The court has extensive discretion in relation to most offences:
‘This is a completely general and unfettered power given by Parliament to courts on the occasion when a person is convicted of an indictable offence of that type. Parliament has decided not to give the sentencing court any guidance as to the way in which it ought to exercise its powers of disqualification in the very many and varied circumstances in which it may come to exercise those powers” (Young (1990) 12 Cr App R (S) 262).
What is a ‘disqualification order’?
The effect of the order is to prevent a person being involved in the future affairs of [any] company:
- he shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the court, and
- he shall not act as an insolvency practitioner.
How long does the order last?
An order made by a Magistrates’ Court can be for no longer than five years. An order made by the Crown Court must be no longer than fifteen years, although in relation to some offences there is a shorter time frame specified.
The Court of Appeal has on occasion supported the making of lengthy orders, for example, one lasting eight years in R v Singh-Mann and Others [2014] EWCA Crim 717.
Will a guilty plea make any difference as to the length of the order?
A guilty plea will not act to reduce the disqualification period. This is because the discount for an early plea does not apply to ancillary orders (Clayton [2017] EWCA Crim 49, [2017] All ER (D) 71 (Jan)).
It is, however, inappropriate to order disqualification where the offender is conditionally discharged (Young (1990) 12 Cr App R (S) 262).
It may be inappropriate for a court to order compensation to be paid by a director who, by virtue of the making of this type of order, will be deprived of the ability to earn a living (Holmes (1992) 13 Cr App R (S) 29).
What happens if I breach the order?
Imprisonment of up to 2 years may be imposed if an order relating to a directors disqualification is breached.
How we can assist in a directors disqualification case
We are experts in all aspects of criminal law. As a result we are well placed to advise you if the above provisions relating to a directors disqualification might be invoked in your case. If you have any concerns or simply to discuss any aspect of your case, then please contact your nearest office here.
Alternatively you can use the contact form below.
Contact
Monthly Archives: May 2018
We are often asked questions about Queen’s Counsel, or QC’s. This is most probably because the image of leading barristers has been epitomised over the years in leading television dramas such as Silk and Kavanagh QC. As a result it is not surprising that many initially wish to investigate the possibility of instructing a QC to defend their case.
So, first, what is a Queen’s Counsel or QC?
A QC, to put it somewhat grandly, is ‘one of Her Majesty’s Counsel, learned in the law.’
The first thing to know is that there is no actual connection to Her Majesty. Queen’s Counsel, while appointed with the final authority of the Queen, are in fact selected by an independent appointments commission.
In practical terms, QCs are barristers or solicitors who have been able to evidence the highest courtroom skills. It is an award for excellence in advocacy.
While the figures vary year on year, about 10% of the bar (the barristers’ profession) are Queen’s Counsel, so it is a pretty select group. There are very few solicitor QCs. The ability of solicitors to apply was only extended to them quite recently and the number of solicitors who specialise in advocacy is relatively low.
There are also honorary Queen’s Counsel who in most instances do not practice at all (such as legal academics), or if they do are not allowed to use the title for that purpose.
Do I need a QC?
There are some things to consider before instructing a QC. The first is that the QC may not be the best person for the job. For example, in many cases, before the magistrates’ court, it is often better to instruct a highly experienced local solicitor who knows the court and this type of court procedure.
It may be that a Queen’s Counsel who is accustomed to defending fraud cases at the Old Bailey may be quite useless appearing on a drink-driving accusation at Mansfield Magistrates’ Court.
Generally speaking, in a perfect world, it makes sense to have the best available advocate, if you can. The ‘best’ may not always mean a Queen’s Counsel though.
If the case is not the most complex, it may well be that a highly experienced junior advocate can more than adequately deal with it. There are also some specialist areas where a junior advocate may be more experienced. This is seen most often in regulatory work, for example.
It is also essential that the advocate works seamlessly as a team with your Crown Court litigator to ensure the best case preparation possible. This is something that we value particularly highly as it can significantly affect the overall outcome of your case.
Where liberty is at risk, it is, however, understandable that some people will wish to leave nothing to chance. They might feel a particular level of comfort in instructing a QC.
So, for most people, the issue is not ‘should I?’, it becomes one of ‘can I?’.
Instructing a QC in privately funded cases?
If you are funding your own defence costs, the crucial question is whether you can afford to engage in instructing a QC. In some instances, it may be possible to instruct a QC alone to defend. In other cases, Queen’s Counsel and a junior advocate will be needed. Ironically this might be more cost-effective.
It is impossible in this article to give indicative costs. These will vary greatly depending on
- the type of case
- the volume of papers
- whether it is a guilty plea or contested trial
- if a trial, the likely length.
In all but the most straightforward guilty plea cases the cost of instructing a QC can easily reach into the tens of thousands. As a result, for all but the very wealthy, there will need to be a considered decision. It is not one that should not be made lightly. We will, of course, carefully navigate you through all of the available options and provide you with the necessary advice.
Can I instruct a QC in a legally aided case?
If your case is legally aided, then it is very unlikely that we can instruct a QC unless the case is one of particular gravity or the utmost complexity.
Most people would assume, for example, that instructing a QC would be permitted in all murder cases. Surprisingly that is not the case. If the option of Queen’s Counsel is available, we will make the application for you and advise of the outcome.
Many people ask whether they or someone on their behalf can pay privately for a QC while receiving legal aid funding for the other elements of the case. If that is something that you wish to discuss, then please speak to us at the earliest opportunity.
In conclusion, there are many cases where instructing a QC is desirable if it can be achieved. However, the vast majority of cases will nor merit a QC, and you can be assured that we will ensure that your representation will be designed to bring about the best possible outcome. This might be through a Solicitor Advocate employed by this firm or through the use of independent counsel.
As a firm, we are immensely proud of the strong working relationship that we have with all of the advocates we regularly instruct. It is probably this close relationship more than anything else which affects case outcomes, so even if you cannot secure a QC to represent you, you should not feel that you are not getting the very best service.
How we can assist
To discuss any aspect of a case before the Crown Court then please contact your nearest office. We will advise you about representation. This will include the pros and cons of proceeding privately.
For example, there is likely to be a bar on claiming back the costs of your defence if you would have been entitled to legal aid but chose not to take advantage of the scheme.
The details can be found here.
Alternatively you can use the contact from below:
Contact
Monthly Archives: May 2018
It is common for officers at airports and other ports of entry to intercept people carrying controlled drugs in their luggage, clothing or inside their bodies on behalf of suppliers in foreign jurisdictions. The colloquial term for such a person involved in drug importation is a ‘mule’. They may have been pressured into carrying the drugs or have done so for a fee, or both.
On occasion large quantities of drugs are found. Sometimes it is merely the leftovers from a holiday or business trip abroad. This may have occurred at a location where drug use is more widely tolerated by law enforcement than it is in the United Kingdom.
Committing the offence of drug importation can however result in severe consequences.
The crime of drug importation
Drugs are brought into the jurisdiction in a number of supposedly ingenious ways. For example, cocaine may be moved in its liquid form while disguised as something else. Drug ‘mules’ may swallow a number of pellets containing drugs of different kinds.
Naturally, the police and associated organisations are frequently uncovering these methods as they arise. This results in those who take the risk and are caught being charged and sent to prison for a significant term. This will be despite initial thoughts that the police or customs officers have been outwitted.
Which laws would I break?
The underlying offence is the breaching of the prohibition on the importation and exportation of controlled drugs. This is created by Section 3 of the Misuse of Drugs Act 1971. This prohibition is paired with the substantive offence. This is contained in Section 170 of the Customs and Excise Management Act 1979.
The maximum penalties
The maximum penalties for the offence of drug importation will vary depending on the type of drugs in question:
- Class A, life imprisonment;
- Class B and C, 14 years’ imprisonment;
Sentencing for drug importation
Various factors will alter the sentence imposed upon someone who either pleads guilty or is found guilty of this offence. These include:
- the role played by the individual in the activity
- the amount and character of the substance in question
- their level of co-operation with the police.
The sentences here are generally heavy. Prison almost always follows for even the smallest quantity of drug. Sentences of between ten and twenty years, or even more, are common where the quantity is large.
There are however a large number of factors that might reduce the seriousness of the offence or provide valuable mitigation. It is essential that you choose a solicitor who will properly explore these on your behalf to ensure a proper reduction in sentence.
Case studies
In Gregory [2012] EWCA Crim 649, the appellant’s sentence of imprisonment was reduced from 8 years to 6 years. This was because the original sentence did not sufficiently reflect the appellant’s relatively minor role and the fact that he believed he was carrying cannabis rather than cocaine.
Conversely, the appellant in Burns [2009] EWCA Crim 1123 received an increased sentence upon a reference by the Attorney-General. In this case the sentence increased from 8 years to 14 years’ imprisonment. This was said to better reflect the fact that he had abused his professional role as a distribution supervisor by allowing cocaine importations.
There is a comprehensive sentencing guideline that judges will use in order to decide sentence.
How we can help in drug importation cases
Such offences are always serious. Expert representation at the earliest stage is highly desirable, particularly if you may have acted under duress and have the basis of a defence in law. Sadly, many already very vulnerable people are caught up in drug importation. It is essential that your story is told.
If you are to be spoken to about an allegation of drug importation then the first thing you must to is take advantage of our free and independent advice in any interview under caution. We will be able to give you initial advice that might help with the direction of the case.
The benefits of such early legal advice can be found here.
If your case is to go to court then we will make sure that your best case is before a jury at trial. Alternatively we will ensure that mitigation is obtained and properly presented on your behalf in order to make sure your sentence properly reflects your involvement.
A number of reasons why you might want to instruct VHS Fletchers over other firms can be found here.
You can find your nearest office by following this link and all of our phone numbers are answered 24 hours a day, every day of the year, to ensure that we provide you with emergency advice when you most need it.
Alternatively you can use the contact form below.
Contact
Monthly Archives: May 2018
On 9 May 2018 the Sentencing Council, which is the body responsible for setting sentencing guidelines in England and Wales, has published proposed new guidelines in respect to public order offences. The consultation ends on 8 August 2018.
What public order offences are covered?
The guidelines will apply to the following offences, all of which are to be found in the Public Order Act 1986:
- Riot
- Violent disorder
- Affray
- Threatening or provocation of violence and the racially or religiously aggravated counterpart offences
- Disorderly behaviour with intent to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
- Disorderly behaviour causing or likely to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
- Offences relating to stirring up racial or religious hatred and hatred based on sexual orientation
When will the new guidelines come in to force?
The proposed guidelines for public order offences are being consulted upon. As a result it is unlikely that any new guidelines will come into force before the end of this year at the earliest.
However, what we tend to see is that judges look at consultation guidelines, even when they are not supposed to. Sentences may begin to reflect the new guideline before it is in force. As a result it makes sense to keep a close eye on sentencing in this area of law.
What are the proposed changes?
These offences can vary greatly in their nature and in their seriousness. For example, affray, which covers the use or threats of violence which would make someone fear for their personal safety, may involve serious or sustained violence or a less serious incident where no one is injured.
The new public order offences guidelines aim to set out a clear approach to sentencing that covers the main factors that should be taken into account in assessing the culpability of the offender and the harm they caused.
For example, an offender with high culpability in the riot guideline may have used petrol bombs or firearms, been a ringleader in instigating violence or have been instrumental in escalating the level of disorder.
The guidelines also aim to encapsulate the wide-ranging harm that is caused by these offences. Individual members of the public may suffer physical injury, fear or distress. There might be damage to their property. Business owners may suffer loss of livelihood and damage to their premises.
Public disorder can inflict serious disruption and damage to local communities and police officers and other emergency workers may be attacked and injured. Incidents may also involve substantial costs to the public purse.
The guidelines also highlight other aggravating factors that would increase the seriousness of offences. This can include offenders inciting others to participate in violence, trying to prevent emergency services from carrying out their duties, causing injuries to police dogs or horses and using or possessing weapons.
Finally, the proposed guidelines also take into account trends in criminality and a social climate which has seen a rise in hate crime offending. The Council considered that a guideline on public order would be incomplete if it did not cover racially or religiously aggravated public order offences and those which specifically address stirring up of racial or religious hatred or hatred based on sexual orientation.
Will sentences for public order offences be longer as a result?
The Sentencing Council does not anticipate that sentence severity will increase, save for a couple of exceptions concerning fines.
Data exists on the number of offenders sentenced for public order offences, and the sentences imposed. There is, however, a lack of data on the categories of seriousness of current cases. It is therefore difficult to establish how current cases would be categorised across the levels of harm and culpability in the draft guideline.
The fear, therefore, is that these new guidelines may result in tougher sentences being imposed that will stretch an already underfunded prison service.
Read more and take part in the consultation here.
How we can assist you
If you are a suspect in a case involving a public order offence then your interview with the police will be key in terms of whether you are prosecuted or convicted of an offence. As a result there are a number of good reasons why you ought to take our free and independent legal advice if interviewed under caution.
If you find yourself facing court proceedings and are denying the offence then we will put together the best case possible to go before the Magistrates or a jury. Some reasons why you might wish to instruct us can be found here.
Finally, in cases where you wish to plead guilty then we will assist the court in placing your case properly within any guidelines and ensure that all mitigating features are placed before the sentencing court. Again, some of the relevant considerations for sentence can be found here.
Please contact your nearest office for further advice
or alternatively use the contact form below
Contact
Monthly Archives: May 2018
In the crown court, while a fine is not the most common punishment meted out, when they are imposed they tend to be very large. Before the Magistrates, any court fine imposed will still be a substantial share of weekly income.
Do I have to pay the court fine all at once?
Sometimes a court will order full payment (and may give a period of time for this to be completed), but in many cases, the court can order that you pay in instalments, usually weekly or monthly.
You will not be given time to pay your court fine (and therefore may be sent to prison forthwith if a fine isn’t paid) if:
- in the case of an offence punishable by imprisonment, you appear to the judge to have sufficient means to pay forthwith;
- it appears to the judge that you are unlikely to remain long enough at a place of abode in the UK to enable the payment of the fine to be enforced by other methods; or
- on the occasion when the fine is imposed, the judge sentences you to an immediate prison sentence, custody for life, or detention in a young offender institution for that or another offence, or so sentences you for an offence in addition to forfeiting his recognisance, or you are already serving a sentence of custody for life or a term of imprisonment or detention.
Setting a default period
Section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 requires a court to fix a period of imprisonment in default.
Imprisonment in default is an extra term of imprisonment that you might receive if a fine is not paid:
“…the purpose of ordering a sentence of imprisonment in default is designed to ensure, so far as possible, that the defendant found to have realisable assets in the amount […] ordered, should pay that amount and should obtain no advantage by refusing to do so. That authority stems not only from previous cases but also from the statutory provisions themselves.” (R v Smith [2009] EWCA Crim 344).
The maximum term is dependent on the size of the fine imposed:
| An amount not exceeding £200 | 7 days |
| An amount exceeding £200 but not exceeding £500 | 14 days |
| An amount exceeding £500 but not exceeding £1,000 | 28 days |
| An amount exceeding £1,000 but not exceeding £2,500 | 45 days |
| An amount exceeding £2,500 but not exceeding £5,000 | 3 months |
| An amount exceeding £5,000 but not exceeding £10,000 | 6 months |
| An amount exceeding £10,000 but not exceeding £20,000 | 12 months |
| An amount exceeding £20,000 but not exceeding £50,000 | 18 months |
| An amount exceeding £50,000 but not exceeding £100,000 | 2 years |
| An amount exceeding £100,000 but not exceeding £250,000 | 3 years |
| An amount exceeding £250,000 but not exceeding £1 million | 5 years |
| An amount exceeding £1 million | 10 years |
Will a court always set the maximum term in default?
The period in default will depend on the amount of the court fine and where it falls within the banding. So, a fine of £55,000 would probably attract a default period nearer 18 months than two years. But this is not an arithmetical exercise.
What happens if I do not pay my court fine?
If you wilfully refuse to pay the fine, and all other enforcement options have been exhausted, you will be ordered to serve the default term in prison.
It is therefore very important that you make contact with your solicitor if your financial circumstances change and you are unable to pay a financial penalty. It is always better to try and resolve difficulties earlier than wait for enforcement proceedings to commence.
I would sooner serve the time than pay the fine, is that possible?
Yes, and no!
If you do not pay, then you will go to prison. The court will, however, always try to secure enforcement first. Imprisonment is not a free choice. Note also that in relation to some financial penalties, such as confiscation, imprisonment in default does not extinguish the requirement to pay.
How we can assist
The law concerning non-payment of fines and other financial penalties can be complicated so this article is intended to give only a very brief overview of the issues involved.
Legal aid can be available in certain cases of default where your liberty is at risk.
If you have any concerns about payment of your court fine or wish to discuss any other aspect of your case then please contact your nearest office. Details can be found here. Alternatively you can use the contact form below.
Contact
Monthly Archives: May 2018
Newark criminal advocate Nikki Carlisle was instructed to defend an allegation of disorderly conduct before Nottingham Magistrates’ Court. The trial was listed before a district judge.
Police officers change evidence in disorderly conduct trial
Two police officers gave evidence on behalf of the prosecution. In their original witness statements they had both described Niki’s client as shouting and swearing in the street. They described a number of other members of the public being present. Their view was that his behaviour would have upset these people. The officers went further to state that they were also distressed by the behaviour because he had been verbally abusive to them.
In a somewhat curious development, when the first officer came to give evidence he was unable to remember anything said or done by Nikki’s client. This surprising turn put Nikki’s client in a much better position.
The second police officer, however, departed from his statement by saying that the behaviour was far worse than originally described. He stated that our client had been aggressive and that he had been subject to “the worst verbal abuse that he had ever received in his life”.
The officer went on to give examples of the kind of the things our client had said to him. Nikki was able to play the bodycam footage that had been provided to us during disclosure. This showed that the defendant was not saying any of the things the officer had spoken of in evidence.
Bodycam footage undermines police evidence
Instead, it showed the second officer being sarcastic towards our client, goading him and then using what was clearly excessive force to arrest him. This included spraying him in the face with CS gas.
Despite this clear evidence, the officer tried to explain the difficulties away. He maintained that the abuse must simply not have been picked up by the body worn camera microphone. He claimed that our client had been resisting arrest and that he was in fear of violence.
Nikki addressed the District Judge in relation to two substantial points:
- whatever the Judge made of the alleged conduct, he should not infer that members of the public would have felt harassed, alarmed or distressed without evidence of that
- the only person claiming to have been so affected by the behaviour was the second officer who could not be called a truthful witness.
The District Judge found our client not guilty of disorderly conduct. The judge went as far as to comment on the unnecessary use of CS gas in this case. Our client is pursuing a police complaint.
Why instruct an criminal defence solicitor?
This case demonstrates a number of reasons why you ought to instruct a solicitor to defend criminal proceedings on your behalf. Although this was a minor matter when compared to many other offences, it was of great importance to our client.
Despite the nature of the offence we were successful in applying for legal aid funding to ensure his free representation in the Magistrates’ Court. You can read more about legal aid here.
We were able to ensure that all relevant evidence was disclosed, including the important body worn camera footage. Some recently publicised problems with disclosure can be found here.
Finally, we will ask questions on your behalf and make arguments based on the law and the facts to the courts.
Contact us
We represent clients across the country from our offices in the East Midlands. You can find the details of your nearest office here. Alternatively you can use the contact form below.
Contact
Monthly Archives: May 2018
New offences of stalking (in addition to the existing offences of harassment) were introduced by Parliament relatively recently in 2012. The offences are harassment which involves a course of conduct that amounts to stalking.
There are two offences. These are stalking involving fear of violence and stalking involving serious alarm or distress.
What is stalking?
There is no strict definition, but the legislation lists a number of behaviours associated with stalking:
- following a person
- contacting or attempting to contact a person by any means
- publishing material relating to a person or purporting to come from them
- monitoring a person’s use of the internet, email or communications
- loitering
- interfering with any property in the possession of a person
- watching or spying on a person
The list is not exhaustive. Nor is behaving in one of these ways automatically stalking. Context is everything in such offences.
What must the prosecution prove in a stalking case?
- That there is a course of conduct
- which constitutes harassment, and
- the course of conduct amounts to stalking.
Additionally, for the offence involving fear of violence it must be proven that:
- the conduct causes another to fear that violence will be used against him; and
- which the defendant knows or ought to know will cause another to fear that violence will be used against him.
The test as to whether a suspect “ought to know” these things about their conduct is whether a reasonable person in possession of the same information would think that the course of conduct would cause the other to fear violence.
It is an offence if conduct amounts to stalking and causes another to fear, on at least two occasions, that violence will be used. Alternatively, it will be an offence if the conduct causes serious alarm or distress and this has a substantial effect on a person’s day to day activities.
This could mean that they have to, for example:
- change a route they normally use
- move home
- change the way they socialise.
It could also mean a change to a person’s physical or mental health.
Are there any defences to stalking?
It is a defence to show –
- the course of conduct was pursued for the purpose of preventing or detecting crime
- the course of conduct was pursued under a rule of law
- that any conduct was reasonable
Additionally, for the offence alleging a fear of violence offence, it will be a defence if the course of conduct was reasonable for the protection of the defendant or another, or for the protection of their or another’s property.
What sentence could I get for stalking?
For the basic offence of stalking the maximum sentence is six months’ imprisonment.
For the offence causing fear of violence or serious alarm or distress the maximum sentence is 10 years imprisonment for an offence on or after 2 April 2017. The maximum sentence is 5 years for offences committed prior to that date.
A restraining order to protect the victim from further contact can also be imposed. This could be the case even where a defendant is found not guilty of the offence.
Seek early advice from an expert in criminal law
These are serious allegations. The law is complex. As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.
As experienced defence solicitors we know that there is always another side to the story, let us tell that for you.
The advantages of early advice legal advice can be found here.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case. Legal aid may well be available to fund your defence at court.
We have offices across the East Midlands. You can find your most convenient office here. Alternatively you can contact us using the form below.
Monthly Archives: May 2018
We are pleased to announce that Elliott Moulster qualified as a solicitor in April following successful completion of his training contract during his time with us as a trainee solicitor. He has accepted our offer of employment as an assistant solicitor within our regulatory department, undertaking prosecutions on behalf of the Health and Safety Executive.
Trainee Solicitor, Elliott Moulster, has sat and passed all of the Professional Skills Courses required for him to qualify as a Solicitor.
In order for anyone to qualify as a solicitor, Elliott had to undertake several years of study followed by a rigorous training process that also involved additional studies.
As a minimum, a prospective solicitor has to undertake four years of study – a three year degree followed by the Legal Practice Course.
Two year training contract for a trainee solicitor
This is followed by a period of usually two years working for a firm or organisation within the legal profession known as the training contract. There are numerous requirements that must be satisfied during a training contract. They include:
- practice in at least three distinct areas of law
- two years’ work experience across these three areas
- experience in key solicitor competencies
- undertaking the Professional Skills Courses, and
- keeping a Professional Development Diary across the two years.
In order to make sure Elliott secured a broad range of legal training, he was seconded to Nottingham Law Centre for a period of his training. His experiences at the Centre can be found here, here and here.
The Professional Skills Course
The Professional Skills Course involves continued professional development around key areas of solicitor practice. The mandatory courses include:
- advocacy
- client care, and
- financial and business skills.
In addition to this, a trainee solicitor must also undertake a total of 24 hours’ of courses in areas of their choosing. These elective modules can cover practically any area of law and have the benefit of giving participants a greater understanding of the areas of law in question.
Securing Higher Rights of Audience
For his options, Elliott chose to undertake his Higher Rights of Audience Qualification. This took up the entirety of the 24 hour additional training. Higher Rights of Audience are required by any 
solicitor who wishes to conduct advocacy in Crown Courts, aside from appeals or committals for sentence.
The process for gaining the qualification involves intensive training. Elliott took part in a four day training course in London. This taught him the rules of criminal litigation as well as provided training in advocacy techniques.
At the end of the course Elliott had to sit two exams aimed at testing the skills and knowledge that he had developed. The pass mark for the exams was at least 60%. They consisted of:
- a two and a half hour written exam based on criminal litigation
- taking part in a 30 minute viva voce. This is an assessment where answers to questions are given verbally as opposed to in writing ;
- presentation of a 15 minute court application on a legal issue such as bad character or hearsay, and
- the 15 minute cross examination of a prosecution witness who was played by an actor.
Despite some very tricky questions in the exams and a less than co-operative witness on the stand, we are pleased to report that Elliott passed all of the exams and assessment.
Work experience and careers advice
We hope that this gives an overview of the training involved in becoming a solicitor. We try and attend schools and colleges to provide careers advice where possible, and offer as much work experience to school and college students that we can.
If you represent a school or college and wish one of us to speak to pupils or students, or if you wish advice or are trying to secure a work experience placement yourself, then please contact us using the form below.
Periodically we will have a vacancy for a trainee solicitor and this will be advertised on our website and publicised through social media so please follow us on Twitter, Facebook and LinkedIn.
Contact
Monthly Archives: May 2018
From an era before a search warrant, in Entick v Carrington (1765), a case concerning the entry to and searching of premises, the court ruled:
“…if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.”
Entick v Carrington is probably the earliest case law concerning the law of search and seizure. It is a legal power since described as a ‘nuclear option’ in the court’s arsenal in the case of R (Mercury Tax Group) v HMRC [2008] EWHC 2721. But, of course, it is certainly not the last word. Over the last few years, there has been a substantial body of developing case law designed to ensure that this most potent state intrusion into the lives of individuals and business is exercised lawfully and proportionately.
Why does it matter?
First and foremost, core constitutional principles are at stake.
These include the power of the state to enter private property. Very often this is done during a dawn raid and with other family members present. As a result the powers should not be used lightly, particularly during what is normally the very early stages of a criminal investigation.
Because of this, the case of R (Mills) v Sussex Police and Southwark Crown Court [2014] EWHC 2523 (Admin) held that warrants should only be sought as a “last resort and should not be employed where other less draconian powers can achieve the relevant objective”.
The taking of documents, files, computer servers and systems can have a profound reputational impact on businesses when staff see what is happening. They and clients lose confidence in the business. The inability to carry out ‘business as normal’ can put the survival of any business at risk and can place an unbearable burden on the individuals involved.
Can I challenge a search warrant?
The powers of search and seizure under a search warrant are spread out over a great many legislative provisions. The key message is to take our legal advice as soon as you are aware that anything might happen or has already happened.
What is clear is that warrants are very often granted on an erroneous basis. The applications show scant regard for the legal principles involved in the issue of the search warrant.
Drawing a warrant too widely is a frequent issue as is demonstrated in the case of R (F, J and K) v Blackfriars Crown Court and Commissioner of Police of the Metropolis [2014] EWHC 1541 (Admin).
While warrants are issued via a judicial process, the Judge will only be able to rely on what is disclosed by the investigator in private.
Police officers are duty bound to provide the court with full and frank disclosure, highlighting any material which is potentially adverse to the application. This includes a duty not to mislead the judge in any material way. The judge must then apply a rigorous critical analysis to the application so that they can be satisfied that the evidence provided justifies the grant of the warrant and give reasons for their decision.
In Redknapp v Commissioner of Police of the Metropolis [2008] EWHC 1177 (Admin) the court ruled:
“The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person’s home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate or Judge in the case of an application under s.9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted.”
There are various avenues of legal redress available, including judicial review. Early intervention may result in the return of documents and property, and in some instances, a claim for damages might be possible.
How we can assist
Please contact us if you know that your premises are about to be searched or have been. Keep any paperwork that you are given. We will be able to give you expert legal advice on the legality of the search including the issue of the search warrant.
You can find your most convenient office here.
Alternatively please use the contact form below.
Contact
menu
