Monthly Archives: June 2019
Crown Court Litigator and trainee solicitor Freddie Sail recently prepared a case for trial at Nottingham Crown Court for a client who faced two allegations of importing what were said to be child-like sex dolls into the UK.
The case shows that often written advocacy can be as important as what is said in court.
A gap in the law on child-like sex dolls?
There is an apparent gap in the law in relation to such items. For example, it is not illegal to simply possess a child-like sex doll. As a result, the prosecution choose to bring proceedings under section 50(3) Customs and Excise Management Act 1979 where the item has been brought into the country.
This states, simply, that it is an offence for a person to import any goods contrary to any prohibition with the intention to evade that prohibition.
The prohibition that catches child-like sex dolls is under section 42 Customs Consolidation Act 1876 which states:
“The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom.”
The ‘table of prohibition’ includes:
“Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.”
You can read more about this aspect of the law here.
New prosecution guidance on child-like sex dolls
Earlier this year, new guidance was issued about the evidence that would be needed to bring a successful prosecution and broader public interest consideration. You can read more about this here.
Freddie saw that the guidance had been issued. He took the opportunity to review his client’s case. This was to see whether steps should be taken to ask the prosecution to look again at whether his client should be prosecuted.
His client denied from the outset the two crucial elements of the offence. Fundamentally, he denied that the doll was representative of a child. He had bought it as depicting an adult. Secondly, he was unaware of any prohibition relating to the importation of child-like sex dolls in any event.
Written representations to the CPS
Having looked at the case together with the guidance Freddie wrote a persuasive letter to the Crown Prosecution Service, asking a lawyer to review the evidence.
In brief, he stressed the following factors:
- the prosecution was not in line with the new guidance
- ‘expert’ evidence in this case should not be relied upon
- there were sufficient features of the doll to mean that it was not ‘unquestionably’ a portrayal of a child
- a lack of evidence suggesting our client was aware of any prohibition
- the advertising of the items as ‘adult sexy dolls’
This communication with the prosecution was referred to by Freddie on the trial readiness form.
No evidence offered following the review
Freddie’s representation were successful. The prosecution accepted that in the light of the new guidance the case should not be pursued to trial. The matter was listed quickly and no evidence was offered.
Freddie’s client was overjoyed when the not guilty verdicts were announced.
Contact a criminal law specialist
If you are arrested or know that the police wish to speak to you about any offending arising out of the importation of a child-like sex doll or any other item make sure you insist on your right to free and independent legal advice. The courts are always likely to take such offences seriously upon conviction.
The advantages of such 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 and will happily travel across the country to provide representation for all football related offences.
Alternatively you can contact us using the form below.
Contact
Monthly Archives: June 2019
Recently, the high profile prosecution of ex-police officer David Duckenfield relating to the Hillsborough tragedy ended without reaching a conclusion. A number of papers reported that there was a hung jury. So, what does that mean?
In an ideal world, a jury will reach a clear conclusion by either convicting or acquitting the defendant.
Where a case retains the original 12 jurors at least 10 must agree on the verdict. If the numbers fall short, for example, with 8 wanting to acquit and 4 wanting to convict, that will not be an acceptable verdict.
If the jury indicates that they will not be able to reach a verdict in accordance with the law then then that jury will need to be discharged.
In legal terms, this is often referred to as a hung jury.
What happens if there is a hung jury?
The prosecution can apply to have the defendant tried again. This will be the outcome in most cases.
The decision is one for the trial Judge who will consider whether or not it is in the interests of justice for a retrial to take place.
Typically, the court considers questions which include (but are not limited to) whether:
- the alleged offence is sufficiently serious to justify a retrial
- if re-convicted, the appellant would be likely to serve a significant period or further period in custody
- the appellant’s age and health
- the wishes of the victim of the alleged offence.
If prosecutorial misconduct is alleged then other factors will come into play, analogous with whether it is an abuse of process to allow a retrial.
In most cases, the defence will not be able to properly resist the application. We would, however, always carefully consider all relevant factors and object if able to.
What happens if a second jury still cannot reach a verdict?
The usual practice in this scenario is for the prosecution to offer no evidence, although there are rare circumstances where a further retrial could take place.
Contact an expert in Crown Court representation
We are specialists in Crown Court litigation and advocacy. You can read about how we prepare for such serious cases here.
Legal aid is likely to be available for defending a Crown Court case.
Here are some of the cases that we have dealt with recently:
Successful defence of a serious robbery in the home.
Successful challenge of expert evidence in drugs case.
Abuse of process in paedophile hunter case.
We have offices across the East Midlands. From those we provide nationwide advice and representation.
You can find your nearest office here.
Alternatively you can use the contact form below:
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Monthly Archives: June 2019
It is a nightmare scenario that potentially any parent could face. A child returns home, late at night, in an agitated state.
He hurriedly tells you that he has been in a fight, it wasn’t his fault, but someone has been hurt, badly. Further details are not forthcoming, but he thinks the police will be coming to arrest him. Thinking fast, and in order to protect your child, you take his clothes and put them in the wash.
Before you can even think of assembling an alibi for him, the police have kicked down the door and found your son cowering in his bedroom. He is naked, and there are no clothes in sight.
The experienced officer knows just what to do, rushing through to the kitchen and unplugging the washing machine. It will later be taken away so that the contents, including the water, can be forensically tested.
Unsurprisingly your son is arrested, but what fate awaits you?
Assisting an offender or perverting the course of justice
How this story ends depends on precisely what the police discover, but it is often proved that a terrified parent has acted to protect their child.
The act of putting those clothes in the washing machine or providing a false alibi amount to attempts to pervert the course of justice.
In other scenarios family or friends might provide some safe harbour for a person fleeing the police. Again, this is a serious criminal offence if done knowingly.
If convicted a prison sentence will inevitably follow, and another life will be shattered. An example of such a case of assisting an offender can be found here.
We will investigate any potential defence for you
In some cases, there might be a viable defence. You can be assured that we will find one if it exists. In other cases, the task is to mitigate by telling the story from the parental perspective. What do you think you would do in this scenario? Or more to the point what would you do if it became a reality?
We might not like to think so, but any one of us could be caught up in a nightmare like this.
All manner of people can find themselves caught up in the justice system. We don’t see criminals, we see people, with their own unique set of circumstances.
Contact a solicitor who is a criminal law specialist
If you are arrested or know that the police wish to speak to you about any offending arising our of a criminal investigation such as assisting an offender or perverting the course of justice then make sure you insist on your right to free and independent legal advice. As you can see, the courts will always take such offences seriously upon conviction.
The advantages of such 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 and will happily travel across the country to provide representation for all football related offences.
Alternatively you can contact us using the form below.
Contact
Monthly Archives: June 2019
In a case earlier this year His Honour Judge Jeremy Richardson QC was faced with the task of sentencing 3 offenders for their part in causing death by dangerous driving of 4 people, and seriously injuring 3 others. The main offender Elliot Bower received a total prison sentence of 11 1/2 years.
Maximum sentence of 14 years for offence
The offence of causing death by dangerous driving carries a maximum prison sentence of 14 years, but what happens if 4 deaths are caused during a single incident? Does the total rise to a maximum of 56 years?
The answer to that question is no, the maximum remains at 14 years.
There is nothing wrong in principle with consecutive prison sentences. Had the defendants committed 4 offences over 4 days, causing one death on each occasion, the theoretical maximum open to the Judge would actually have been 56 years, or 4 times 14 years.
So, why was it not possible in this case?
Consecutive sentences not possible
The Judge was obliged to follow the case of R v Jaynesh Chadusama [2018] EWCA Crim 2867 which led to the Judge observing:
“I am compelled to take 14 years imprisonment as the maximum sentence open to me where multiple fatalities arise from a single incident of dangerous driving.”
The Judge did, however, have the following to say, which indicated his general unease as to the state of the law:
“Before passing sentence, I wish to make this observation. It is my intention to refer these sentencing remarks to the Secretary of State for Transport. I am aware that HM Government has embarked upon a review of extant road traffic legislation including sentencing. It is not for me to recommend changes in the law. I simply invite those who have that responsibility, namely the Secretary of State, to consider the following point.
It may be worthy of consideration whether a court, when there are multiple deaths arising from a single episode of dangerous driving, particularly when the dangerous driving is of an exceptionally serious kind – as in this case, should have power to impose a higher level of custodial sentence than would be permitted by the current law.
I merely call this case to the attention of the Secretary of State for consideration.
It is not for me to make this observation, but there may be some who feel that Parliament may wish to revisit the issue of the powers available to a court when sentencing in an exceptionally serious case of this kind.
I repeat what I said earlier – the sentence I pass today is governed by the law which is operational today. I am bound by that law and I shall pass sentence in accordance with it.”
Will the law change?
The Attorney General in the days following this case indicated that a change in sentencing policy is likely. This will be more easily achieved not by trying to reverse the rule in R v Jaynesh Chadusama but by simply increasing the maximum penalty available to one of life imprisonment.
It is also likely that we will see increases in sentences where death is caused by driving, and perhaps even in the relatively new offence covering the causing of serious injury.
Contact an expert road traffic law solicitor
If you are arrested or know that the police wish to speak to you about any offending involving dangerous driving then make sure you insist on your right to free and independent legal advice. As you can see, the courts will always take such offences seriously upon conviction.
The advantages of such 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 and will happily travel across the country to provide representation for all football related offences.
Alternatively you can contact us using the form below.
Contact
Monthly Archives: June 2019
In difficult financial circumstances, it might be tempting to consider purchasing counterfeit currency. While the price of such ‘money’ fluctuates widely, it is often as low as 25% of the face value. As a result this may make it a tempting proposition.
State currency producers spend millions each year on devising and improving security safeguards. The fact that counterfeit currency can still be passed off for real money reveals something of this hidden world of criminality.
To produce high-quality counterfeit currency requires an investment in expensive print technology. As a result the people responsible for such enterprises are sophisticated and organised criminal gangs. They will use fake money sales to finance illegal drugs, weapons and trafficking activities.
In addition to the threat that counterfeit currency poses to the broader economy, it is this link to organised crime that requires courts to pass deterrent sentences on those caught with the money.
The potential consequences of passing counterfeit currency
Non-custodial sentences are almost unheard of, even for the use of a single note or coin.
In Corcoran [2013] where a single £50 note was passed, a sentence of six months imprisonment was approved by the Court of Appeal following a guilty plea.
The defendant in Miller [2010] originally received two years imprisonment, but this was reduced to a sentence of 15 months. Miller passed three counterfeit £20 notes and three more were found in his possession.
The Court of Appeal has stated:
“We observe, as other constitutions of this court have done on previous occasions, that in view of the potential harm to the United Kingdom economy an immediate custodial sentence would almost invariably be required in cases such as this. However, its term will depend upon the factual circumstances of the instant case. One of the most important factors will be the number of counterfeit notes involved, which will give some indication as to the proximity of the offender to the source of the notes.”
The maximum sentence for tendering counterfeit currency is ten years imprisonment.
For those involved in the production of notes or coins, severe sentences typically follow, and a court may also consider making a preventative order such as in the case of Karra and Karra [2015].
In the case of Crick [1981] the court observed:
“Coining is a serious offence. It was rightly treated as such by the learned judge, who correctly took the view that it called for an immediate custodial sentence. It must, however, be recognised that not all such offences are of the same gravity.
At one extreme is the professional forger, with carefully prepared plates, and elaborate machinery, who manufactures large quantities of bank notes and puts them into circulation. A long sentence of imprisonment is appropriate in such a case.
Here the offence is at the other end of the scale. The tools used to make the blanks were primitive, and were not acquired specially for the purpose; the techniques used were amateurish, and there was little real attempt to make the blanks a facsimile of a 50 pence piece. The coins were not, and could not have been, put into general circulation.”
Contact a criminal law solicitor
If you are arrested or know that the police wish to speak to you about any offending involving counterfeit currency then make sure you insist on your right to free and independent legal advice. As you can see, the courts will always take such offences seriously upon conviction.
The advantages of such 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 and will happily travel across the country to provide representation for all football related offences.
Alternatively you can contact us using the form below.
Contact
Monthly Archives: June 2019
Many people face very lengthy court proceedings, and it is therefore hardly unusual that on occasion a person may not be too ill to attend court.
Despite this fact, courts are sceptical of alleged illness. Unless the rules are followed in close detail, a defendant who does not attend faces the serious prospect of being arrested by the police and taken to court in custody. This may involve a stay in police cells over the weekend, so it is essential that you understand what you need to do.
Too ill to attend court? Let us know straight away.
The first step is to inform your solicitor as soon as you are able.
All of our office numbers can be called at any hour of the day or night. This will allow you to contact us before the office opens so that you can inform us what is happening.
In almost all cases, if you do not need to see a doctor, the court is unlikely to accept your illness as an excuse not to attend court.
It will, of course, depend on the exact circumstances. As a result it is essential to speak to us and obtain advice as to what is the best course of action.
A doctor will be able to issue you with a sick note. This is not, however, necessarily the end of the matter, and the opinion of a doctor does not bind a court.
Doctors have been issued with guidance concerning medical notes for court non-attendance, but a busy practitioner may very well miss the detail.
The Criminal Practice Direction sets out the following minimum requirements:
- The date on which the medical practitioner examined you;
- The exact nature of your ailments;
- If it is not self-evident, why the ailment prevents you attending court;
- An indication as to when you are likely to be able to attend court, or a date when the current certificate expires.
Circumstances where the court may find a medical certificate unsatisfactory include:
- Where the certificate indicates that the defendant is unfit to attend work (rather than to attend court);
- Where the nature of the defendant’s ailment (e.g. a broken arm) does not appear to be capable of preventing his attendance at court;
- Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale.
Contact your criminal law solicitor
You will have information from us about who your solicitor is. All of our office numbers will be answered out of hours to deal with emergencies like this.
If you are not sure, you can find your nearest office here.
Monthly Archives: June 2019
A District Judge sitting at Westminster Magistrates’ Court has authorised a summons to be issued against the prominent conservative member of parliament, Boris Johnson. This follows a private prosecution brought before the court.
The allegations relate to alleged conduct during the Brexit referendum campaign. In particular the prosecution relies upons the ‘£350m per week for the NHS slogan’ that adorned the side of the Leave campaign buses.
Unless other steps are taken to the stop this prosecution, Johnson will have to appear in court to answer these charges and face trial at the crown court.
The full judgement can be found here.
Misconduct in public office?
The allegation faced by Johnson is one of misconduct in public office. In order to be found guilty it must be proved that he was:
- a public officer acting as such
- who wilfully neglects to perform his duty/or wilfully misconducts himself
- to such a degree as to amount to an abuse of the public’s trust in the officeholder
- and does so without reasonable excuse or justification.
The issue identified early on by his legal team is that he was not acting in his position as MP or Mayor of London when he made the statements that are the subject of the prosecution. The assertions were made during a contested political campaign and were therefore not sufficiently associated with either office.
Why is this unusual?
The unusual aspect of this case is that this is a private prosecution crowdfunded by individuals who support the prosecution.
How often is there a private prosecution?
In England and Wales, the vast majority of prosecutions are undertaken by the Crown Prosecution Service. In addition there are also a large number of other public bodies that regularly prosecute cases. These will usually be of a specialist nature. These bodies include the Environment Agency, Serious Fraud Office, Local authorities and the Civil Aviation Authority etc.
There are also very few well-known organisations that regularly bring private prosecutions. These include, most notably, the RSPCA in respect to allegations of animal cruelty.
Private individuals choosing to bring private prosecutions are relatively rare.
Are private prosecutions always allowed?
The Supreme Court has reiterated quite recently that private citizens have a constitutional right to prosecute alleged crimes before the courts.
Some companies and individuals’ resort to private prosecution when they feel that the State has failed to act.
There are many safeguards to prevent vexatious prosecutions, such as:
- Scrutiny before a summons is issued
- Abuse of Process remedies
- The ability of the Crown Prosecution Service to take over a private prosecution
- A new proposed code for private prosecutors drafted by specialist firms who conduct this type of work
- Risk of adverse costs orders if the prosecution is unwarranted
Despite these safeguards there are still some concerns. We will be particularly alert when a private prosecutor is involved to ensure that your rights as a defendant are protected. Issues that will be particularly relevant will concern disclosure and fair prosecution practice. We will not hesitate to seek full costs recovery on behalf of a client if the prosecution ought not to have been brought in the first place.
Seek advice from a specialist criminal solicitor
If you face court proceedings, whether a state or private prosecution, we can 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 and will happily travel across the country to provide representation for all football related offences.
Alternatively you can contact us using the form below.
Contact
Monthly Archives: June 2019
Few people would disagree with the suggestion that sentencing law in England and Wales is a complete mess. The provisions that govern how a defendant is to be sentenced are both complex and disparate and to be found across a significant number of statutes. The proposal is to replace the variety of provisions with a new sentencing code.
Why does this matter?
Research has shown that thousands of sentencing errors are made each year. Many end up going completely undetected. Sometimes the mistakes make little difference in practice, but often the failure leads to unlawful sentences being imposed.
The complexity of the statutory provisions is only one consideration. There is also a large body of case law that mjust be taken into account. Again, we see many errors, most notably concerning protective orders where conditions imposed are often draconian and unnecessary.
Sentencing errors can lead to a failure to protect victims as well as unlawful or inappropriate sentences for defendants. Any appeal proceedings that follow to put matters right will be costly. Ironically the Court of Appeal often makes mistakes itself.
So, what is being proposed?
The Law Commission has proposed a ‘Sentencing Code’. This will be a single Act of Parliament that will place all sentencing provisions in one place.
To achieve this, a two-stage process will take place:
- Minor amendments to existing statutes will be made to ‘tidy up’ the statute book.
- Immediately afterwards the provisions will be consolidated into one Act of Parliament (‘the sweep’).
This clean sweep of law will then lead to a single consolidated statutory provision resulting in a sentencing code that can be further amended in the future.
It is important to note that this procedure is a consolidating procedure Apart from minor changes to legislation there will be no material change to existing law. There will be no increases to the existing sentences available to courts.
Will the sentencing code make a difference?
Given the effect of this is merely to move sentencing law into one single statute, it is a reasonable question to ask whether this will make a difference.
The Law Commission carried out extensive testing of the proposals. It was demonstrated that having a single reference point for sentencing leads to fewer errors. Errors will continue to be made, for all manner of reasons, but we should see a massive reduction.
When will these changes happen?
The first piece of legislation was laid in the House of Lords last week, and the provisions could be law in a matter of months. Much will depend on the legislative timetable and the uncertainty of the political situation at the present time.
When the relevant legislation is enacted, there will need to be a period of training for lawyers and judges before the new statute takes effect so it seems unlikely that the provisions will come into effect before mid 2020 at the earliest.
What happens until then?
Until that time we will continue to be alert on your behalf.
Our lawyers take great care to ensure lawful and proportionate sentences are passed and will not hesitate to take corrective action where that is required.
We prefer to work hard to avoid mistakes in the first place to avoid problems later. As a result all of our advocates are highly trained in the complexities of sentencing law. Our ethos is that we must ‘get it right first-time’.
If, however, you believe that your sentence before either the Magistrates’ Court or Crown Court was unlawful or excessive then please contact us immediately.
Contact a specialist criminal lawyer
The earlier we are involved in your case, the greater the opportunity for us to ensure that everything goes right at each step of your case.
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 advice legal advice can be found here.
This will allow us to make sure that you are doing the right thing by answering police questions or exercising your right to silence.
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 and will happily travel across the country to provide representation for all football related offences.
Alternatively you can contact us using the form below.
Contact
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