Monthly Archives: January 2019
New legislation was introduced in 2016 banning the production, sale, distribution and supply of psychoactive substances.
A review of the legislation took place earlier this year and the main findings are below.
What challenges have there been for the law?
There have been three main challenges. These concern:
- the medicinal products exemption for nitrous oxide
- the psychoactivity of the same gas, and
- the psychoactivity of synthetic cannabinoids.
What was decided?
In each case, the Court held that the substances were subject to the provisions of the Act.
What enforcement has been taken?
There have been around 270 prosecutions under the Act. About 170 sentences have been imposed and 332 retailers have been identified as the ceasing sale of psychoactive substances.
Police forces have recorded 1,481 arrests and seizures up to March 2017, so it is clear that the supply of the substances has not been eliminated.
Has the new law on psychoactive substances had any effect?
The main aim of the Act was to prevent the open sale of psychoactive substances, and this has largely been achieved. There has been a fall in the use of the substances and therefore a reduction in health-related harm.
There has been an increase in the supply by street dealers, an increased use in some prison populations and amongst the homeless and there is a continued development of new substances in an aim to avoid the legislation.
What are the penalties?
The maximum penalty for producing, supplying, possessing with intent to supply or importing psychoactive substance is seven years. The maximum penalty for possession of a psychoactive substance in a custodial setting is two years.
The Act also introduced a scale of civil sanctions:
- prohibition notices
- premises notices
- prohibition orders, and
- premises orders
Breach of the two orders is a criminal offence.
How can we help?
Various substances are banned under the Psychoactive Substances Act 2016. Some are now controlled under the Misuse of Drugs Act 1971.
Stronger penalties are available under the Misuse of Drugs Act. As a result it is essential to ensure that the correct legislation is being applied. We are experts in this area and can provide you with tailored advice.
As a result, if you are arrested or know that the police wish to speak to you about a criminal offence involving controlled drugs or psychoactive substances then make sure you insist on your right to free and independent legal advice.
The advantages of such early 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.
You can read about a case that we successfully defended where automatism was the issue here.
You can find your nearest office here.
Alternatively you can use the contact form below:
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Monthly Archives: January 2019
Imagine waking up one morning and the horror of the night before quickly unfolds.
Blue lights and uniformed police officers greet you, search your house and find your girlfriend dead in the bathroom.
You have no memory of anything happening overnight, and she was alive and well when you went to sleep.
You are arrested and while riding in the back of the police car, can only think that you must have done it while asleep. It sounds almost comical that this could actually be a viable defence, but the reality is that it could well be.
Are you guilty?
Sleepwalking is most often used as a defence to violent or sexual offences (often referred to as ‘Sexsomnia’) and is a legitimate defence to both.
It falls under the defence of automatism, which is further broken into two types. Which type of automatism will depend on the cause:
- internal (insane automatism), or
- external (simple automatism).
Both of these mean you didn’t act knowingly but acted automatically and without the intention to commit the crime.
It is likely that if this state was brought about as a result of self-induced intoxication, the defence will not be available according to Finegan v Heywood The Times, May 10 2000.
Insanity or non-insane automatism?
Insane automatism is a more difficult defence to put forward. It requires the defence to prove that it is more likely than not the explanation for the offence. The rules to be followed are those set out in the M’Naghten case. The defence also needs to be supported by medical evidence of an internal cause.
Simple automatism, on the other hand, requires the defence only to provide enough evidence to make the issue “live”, in other words to make it a realistic possibility that you acted unknowingly.
Expert evidence will probably be required in both cases:
“I do not doubt that there are genuine cases of automatism, but I do not see how the layman can safely attempt, without the help of some medical or scientific evidence, to distinguish the genuine from the fraudulent” (Hill v Baxter (1958) 1 Q.B. 277, 42 Cr. App. R. 51).
The prosecution will then have to disprove it so that the jury can be sure you acted knowingly.
There is some legal debate in other jurisdictions concerning the class in which sleepwalking might fall, but the courts in England and Wales are yet to grapple with this. This is perhaps just as well, as the law is complicated enough as it is.
What are the outcomes?
Non-insane automatism, if accepted, will lead to a simple acquittal: not guilty.
Insane automatism is slightly trickier and results in a special verdict: not guilty by reason of insanity. The sentencing options available to a judge are then limited to an absolute discharge, a supervision order, or a hospital order.
Instruct an expert in criminal defence
Sleepwalking cases are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.
As a result, if you are arrested or know that the police wish to speak to you about a criminal offence then make sure you insist on your right to free and independent legal advice.
The advantages of such early 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.
You can read about a case that we successfully defended where automatism was the issue here.
You can find your nearest office here.
Alternatively you can use the contact form below:
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Monthly Archives: January 2019
Senior Crown Court Litigator Lisa Sawyer based at our Nottingham office, helped achieve trial success after exploring a rather obscure and developing area of defence, sexsomnia.
Her client was charged with two counts of rape and multiple sexual assaults. He denied the offences, putting forward a defence of ‘sexsomnia’ or ‘sexual behaviour in sleep’.
Expert in Sexsomnia
The case involved Lisa instructing perhaps the leading expert in the field, Dr Chris Idzikowski BSc PhD CPsychol FBPsS. He is President of the Sleep Medicine Section of the Royal Society of Medicine and Director of the Sleep Assessment and Advisory Service.
The area of sleep research and sleep medicine that relate to sexsomnia have only evolved recently, and as a result there are no generally accepted methods to investigate whether sleep-related behaviours have lead to criminal charges. The preparation of this case involved the client as an inpatient for two nights for a study of his sleep patterns. The expert was then able to consider:
- whether the client was capable of involuntary behaviour during sleep
- to review the behaviour alleged and see whether it could have occurred whilst the person was asleep.
Research has shown that many forms of sexual behaviour can occur whilst an individual is asleep. Generally the behaviour is simple and rarely includes more complex acts such as intercourse. In this case the client was said to have committed a rape.
For a proper opinion to be given evidence has to be gained from a number of additional sources – usually historical, such as from a partner, previous partners, friend and relatives. The key witnesses, however, were the client and his then partner.
Favourable conclusion
Dr Idzikowski was able to conclude that the client had a predisposition to involuntary behaviour during sleep, and that factors existing in the client’s personal life at the time may well have led to the behaviour. The partner being present was a sufficient trigger for the behaviour, and the timing and behaviour was consistent with ‘parasomniac behaviour’, behaviour whilst asleep, or sexsomnia.
The Crown Prosecution Service attempted to counter this expert evidence with its own doctor flown in from America to give evidence.
Specialist advocacy from independent counsel
Following careful handling of the case by specialist advocate Gary Summer of 9 Bedford Row the client was found not guilty.
Representation under the Crown Court legal aid
The client had the additional benefit of being in receipt of legal aid which meant that ultimately, because he was successful at trial, the preparation and representation was free of charge to him. This was of particular importance as the expert fees necessary to prepare the case in his behalf were considerable.
Contact a criminal defence specialist
Sleepwalking cases are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.
As a result, if you are arrested or know that the police wish to speak to you about a criminal offence then make sure you insist on your right to free and independent legal advice.
The advantages of such early 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.
You can read more about the issue of automatism here.
You can find your nearest office here.
Alternatively you can use the contact form below:
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Monthly Archives: January 2019
We all know that fly-tipping is an offence, but did you know you commit an offence if you pass waste to someone who isn’t licensed?
What is meant by ‘waste’?
This article is referring to household waste. For example, this may mean excess rubbish that does not fit in your general collection bins.
How could I commit an offence of fly-tipping?
You have a ‘duty of care’ to take all measures reasonable in the circumstances to ensure you only transfer waste to an ‘authorised’ person. Please note that if a trades person working at your house produces waste, they are responsible for the removal and disposal.
Most offences of fly-tipping are committed by someone paid to take the waste away rather than the person who produced the waste. This means that you commit an offence if the person you ask to take the waste away is not licensed to do so and then illegally disposes of it.
What is an authorised person?
This is usually the local authority collection service, a registered waste carrier or an operator of a registered site. You can check if a person is licensed on the Environment Agency Website.
What could happen to me?
The government is introducing a fixed penalty notice for breaches of the household duty of care in relation to fly-tipping.
Currently, you could be offered a caution, warning or be prosecuted for failing to comply with your duty of care. The new penalty notice system provides an alternative to a prosecution.
The penalty will range from £150 to £400. The minimum discounted penalty available will be £120. The penalty is set deliberately at a high rate as otherwise it may still be cheaper to use an illegal waste collector. It is intended to act as a deterrent and is therefore set at a rate that is higher than the cost of legitimate disposal.
The guidance produced by the government for local councils states that householders should not be fined for minor breaches and consideration should be given as to whether it is proportionate and in the public interest to issue a notice to a person who is classed as vulnerable.
What if I do not pay the penalty?
If you chose not to pay the penalty you can be prosecuted for the offence through the courts. The typical fine imposed at court is likely to be significantly higher than the penalty notice.
When will the law be brought in?
The law to introduce the penalty is expected to be in force early this year.
How can we help?
If you are invited to attend an interview with any prosecuting agency, such as a local authority, you can have a solicitor present. Dependent upon your means, that advice and assistance may be free of charge to you under the Legal Help scheme.
The advantages of such early 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.
You can find your nearest office here.
Alternatively you can use the contact form below:
Contact
Monthly Archives: January 2019
Nottingham crime and regulatory solicitor Martin Hadley represented a professional client, a pharmacist, who was being investigated by the Information Commissioner’s Office (ICO). Following investigation he was able to secured a positive outcome for this client.
Information Commissioner Received Complaint
The ICO had received a complaint that Martin’s client had been “flying tipping” waste in the locality of one of their pharmacy branches.
A member of the public discovered an abandoned suitcase in the street. Correspondence was found in the case and it was clear that the paperwork was attributable to the community pharmacy operated by Martin’s client. 
Also found in the bag were documents with the pharmacy stamp upon them which identified the names and addresses of pharmacy patients. On the face of it this appeared to be a clear breach of patient confidentiality.
The Information Commissioner was investigating a breach of the seventh principle of data protection, namely the requirement to take appropriate technical and organisational measures to avoid the unauthorised or unlawful processing of personal data.
Clear and Robust System
Martin took the client’s full instructions upon the points this evidence supplied by the Information Commissioner. It was apparent that our client had clear and robust systems in place for the disposal of both confidential and non-confidential waste. These processes allowed them to quickly understand how the problem had arisen.
Individuals had been climbing over the wall of their premises and breaking into the waste bins. No doubt these people were hoping to find Controlled Drugs.
Sanctions Available to ICO
The Commission could have taken various steps including:
- Providing advice to the clients.
- Require the client to produce improvement plans.
- Give undertakings to improve compliance.
- Serve enforcement notices.
- issue monetary penalties of up to £500,000.
Positive Client Outcome
The instructions given and our advice meant that we were able to reply to the ICO denying the breach and providing a bundle of documents to persuade the Information Commissioner that no action should be taken.
Our client’s full responses led to the ICO swiftly reaching the conclusion that no further action was necessary.
Contact regulatory solicitor Martin Hadley
If you face investigation by the Information Commissioner’s office, local authority or similar then please contact Martin Hadley straight away on 0115 9599550 or use the form below.
You will no doubt benefit from his clear analysis of your problem, practical advice and robust approach to your problem.
Contact
Monthly Archives: January 2019
On Monday 21 January 2019 the government unveiled new domestic abuse legislation. This represents its new strategy to tackle domestic abuse. This follows a consultation exercise carried out last year which drew over 3,000 responses.
The measures within the new domestic abuse legislation are:
- Introducing the first ever statutory government definition of domestic abuse, which will include economic abuse
- Establishing the office of the Domestic Abuse Commissioner and setting out the Commissioner’s functions and powers
- Providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order
- Prohibiting perpetrators of abuse from directly cross-examining their victims in person in the family courts, and also giving the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’ evidence or cause the witness significant distress
- Creating a statutory presumption that complainants of an offence involving behaviour which amounts to domestic abuse are eligible for special measures in the criminal courts
- Enabling domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody
- Placing the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing
- Ensuring that where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy) this must be a secure lifetime tenancy, and
- Supporting ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), by extending the extraterritorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.
What will be the effect of the new domestic abuse legislation?
While we will have to await the passage of the bill through parliament to see the final package, one thing of particular note to us as criminal lawyers is the proposal to create a Domestic Abuse Protection Notice and Domestic Abuse Protection Order.
This will be based on the existing regime for criminal behaviour orders (formerly known as ASBOs). Breach of these orders will carry imprisonment of up to 5 years.
While the existing legislative provisions could be used in the context of domestic violence, they rarely are. What we have seen over the years is the specific tailoring of the framework to meet particular problems (in terrorism and trafficking for example).
We can, therefore, expect the effect of these orders to impact quickly, resulting in stiff prison sentences for those who breach them. The government estimates that hundreds more offenders may face imprisonment each year.
We do however foresee some real problems. Domestic abuse is a particularly complex societal problem. Relationships are often problematic and rocky. It is possible that breach will be used as a ‘weapon’ against many defendants. It will, therefore, be imperative to ensure that recipients of these orders understand the severe impacts and consequences that will follow. It will also be essential to ensure that orders are only made in appropriate cases.
As a firm, we closely monitor all legislative developments and will keep you updated as the new domestic abuse legislation progresses through parliament.
Contact an expert criminal defence solicitor
Cases of alleged domestic violence are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and navigating a successful path through the long and stressful court process.
As a result, if you are arrested or know that the police wish to speak to you about any criminal offence, including those alleging domestic abuse, then make sure you insist on your right to free and independent legal advice.
The advantages of such early 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.
You can find your nearest office here.
Alternatively you can use the contact form below:
Contact
Monthly Archives: January 2019
The big news story of last weekend was the surprising news that the Prisons Minister is considering whether to abolish the power to impose short prison sentences, those of 6 months or less.
Arguing for the need for reform, Rory Stewart MP told the Daily Telegraph Magazine:
“You bring somebody in for three or four weeks, they lose their house, their job, their family, their reputation.
They come (into prison), they meet a lot of interesting characters (to put it politely) and then you whap them on to the streets again.
The public are safer if we have a good community sentence… and it will relieve a lot of pressure on prisons.”
How effective are short prison sentences?
Short prison sentences are seen by many as ineffective. They allow little if any time for rehabilitation and cause massive disruption to offender’s lives. They result in even higher rates of repeat offending.
Supporters of the shorter sentence point to the salutary effects of a ‘short, sharp shock’ and community respite from offending.
This is one of those debates where there is at least some evidence to support all viewpoints.
I does, however, also generate debate on the broader question of what prison is for. Is it to deter, punish, rehabilitate or a combination of things? Or something else entirely?
Once we, as a society, work out what we seek to achieve by imprisonment we can then ask the question – does it work?
A recent case in point
Take a case in point also reported over the same weekend. Two brothers were each imprisoned for three months following a conviction for perverting the course of justice. Their case involved trying to evade penalty points for a road traffic offence.
Did the well publicised risk of imprisonment deter them? Clearly not.
Will it punish them? The answer to that is clearly yes, but if they then lose their jobs and homes, is it disproportionate?
Could we have imposed an altogether different and more worthwhile punishment, such as unpaid work in the community?
A refreshingly new approach to penal policy?
The answer to these and other questions concerning penal policy have been debated for a very long time, and traditionally, political parties have avoided any debate that has a flavour of being ‘soft on crime’.
So, it is refreshing to see a government minister willing to grapple with these complex issues, for the greater good.
Any change will require legislation so should not be expected for another 12 months or so, but in the meantime, it does allow advocates an opportunity to debate these issues with sentencing judges.
Maybe, just maybe, even the introduction of this debate might save some defendants from unnecessary and damaging short prison sentences. We shall certainly try.
Contact a criminal law specialist
Until there is any change in the law, everybody charged with an imprisonable offence may receive a short prison sentence depending upon the circumstances.
As a result, if you are arrested or know that the police wish to speak to you about any criminal offence then make sure you insist on your right to free and independent legal advice.
The advantages of such early 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.
You can find your nearest office here.
Alternatively you can use the contact form below:
Contact
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