Monthly Archives: November 2019
The deadline for registering to vote for the General election 2019 has now passed. Those who choose to vote will go to the polls on 12th December 2019 to decide the political makeup of the next parliament.
The Representation of the People Act 1983 creates a number of offences concerned with political elections and those engaged in political party management should receive detailed training in this regard.
But what happens if people fall foul of the law?
The guideline case in this area is Hussain [2005] EWCA Crim 1866, where the following observations were made.
Why election offences are so serious?
‘Among the most important features of the way of life in this country is, first, the fact that this country is a democracy. It has a form of government based upon the principle that, subject to limited exceptions, each individual member of the public is entitled to a single vote to elect the government of the day, whether national or local. In this process of election every vote should be of equal value. The second feature is that, although we have no reason for complacency, the government in this country (both national and local) is usually free from any form of corruption. The third feature to which we draw attention is that the principles to which we have already referred are every bit as much as important in the case of local government as they are in the case of central government.’
The danger to democracy
‘If in a democratic society the electoral system is contaminated by corruption or fraud, it will be rendered worthless. It is the responsibility of the courts and our justice system as a whole, so far as it is within the courts’ jurisdiction, to protect the country’s electoral system.
This is a responsibility to which the courts must attach the greatest of importance.’
The need for deterrent sentences
‘Having regard to the nature of those offences, it was of importance that the punishment that was passed was one which would deter others from committing offences of that sort.
Even a deterrent sentence has to be proportionate to the offence and not unjust in relation to the offender. However, a deterrent sentence is passed by the courts with the primary object of deterrence.’
Age and good character of limited mitigation, possibly aggravating the offence in some cases
‘… the circumstances of the offender, such as the fact that in this case the applicant is now aged 62 and suffers from angina, become of significantly less importance. So does the fact that hitherto he had been a leader of the community to which he belonged and that he was regarded by those in the community who knew him as being entirely estimable. Indeed the very fact that he had this reputation within the community meant that it was easier for him to commit these offences.
No doubt if his name had not been associated with the election in the way that it was, it would have been more difficult for those who were acting on his behalf to persuade people to entrust their voting papers to their custody. The applicant took advantage of members of his own community who were less educated and less able to protect themselves than the majority of the electorate in this country. They did not understand what they were doing when they handed over the papers. He used others to carry out his fraudulent intentions.
By doing so they became part of a conspiracy to undermine the electoral system. These were calculated offences.’
Actual Sentences Imposed
In the case of Hussain a sentence of 3 years 7 months was imposed for large-scale election fraud.
In Fadaka (2015) which concerned a false statement concerning candidate eligibility a suspended sentence of 12 months was quashed and 6 months immediate term imposed instead.
And finally, in Khan (2009), another fraud case in relation to ‘ghost voters’, the court commented that the appellants were wise not to appeal sentences of 42 and 54 months.
The clear message from the Court of Appeal is that election fraud offences will be treated extremely seriously and immediate custody is almost inevitable.
Contact a specialist criminal law solicitor
If you are arrested or know that the police wish to speak to you about an offence arising out of the General Election 2019 or any political election 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.
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: November 2019
In some instances, it is not convenient for a witness to be present in court to give evidence, generally because they live or work some distance away from the court, or some other good reason.
There are legal provisions that cater for this scenario, and while the prosecution widely uses them (notably for police officers), it is vital to remember that the defence can take advantage of the legislation in the same way.
What does the law say about the live link?
Section 51 of the Criminal Justice Act 2003 states that a witness (other than the defendant) may, if the court so directs, give evidence through a live link in the following criminal proceedings:
- a summary trial,
- an appeal to the Crown Court arising out of such a trial,
- a trial on indictment,
- an appeal to the criminal division of the Court of Appeal,
- the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (c. 35),
- a hearing before a magistrates’ court or the Crown Court which is held after the defendant has entered a plea of guilty, and
- a hearing before the Court of Appeal under section 80 of [the Criminal Justice Act 2003].
Can a defendant give evidence via this provision?
Section 51 does not apply to defendants and is considered somewhat out of date in other respects. In Clark [2015] EWCA Crim 2192 the court observed:
‘That there are idiosyncrasies in the provision of this important aid to the administration of justice does not, in our judgement, befit a modern system of criminal justice. It does not further the overriding objective to deal with cases justly, including being fair to the parties, recognising the rights of defendants, respecting the interests of victims (and, in this case, witnesses) and progressing cases in a manner that is efficient, expeditious and proportionate.
There are clearly circumstances where it may be in the interests of justice for a court to be able to receive evidence by live link from witnesses and defendants for which the existing statutory provisions do not provide. One potential example is a defendant who wishes to give evidence in relation to a minor road traffic offence alleged to have been committed hundreds of miles from his home. There may even be examples where it may be in the interests of justice for a court to be able to receive material by telephone.
When Parliament first began legislating to prescribe the circumstances in which criminal courts could receive evidence by live link, the requisite technology was in its infancy and the courts were not necessarily equipped with the relevant equipment (or technical knowledge). Times have changed; technology has improved and is continually improving. The courts now regularly receive evidence by live link where the statute permits.
In the circumstances, therefore, it may be that Parliament should consider repealing the provisions of primary legislation relating to live links and provide a general authority to the Criminal Procedure Rules Committee to make rules to determine how and in what circumstances the criminal courts may receive evidence. Rules made by the Committee have the benefit of being formulated by representatives of those that have to use them and may be affected by them. They can also be amended with relative speed (for example, where gaps or unintended lacunas come to light) and in order to make best use of emerging technology. That, however, is a matter for Parliament, but, in our judgement, it is a step which requires very serious consideration.’
What factors will the court consider?
A direction may not be given under this section unless the court is satisfied that it is in the interests of the efficient or effective administration of justice for the person concerned to give evidence in the proceedings through a live link.
In deciding whether to give a direction, the court must consider all the circumstances of the case, and those circumstances include in particular:
Those circumstances include in particular:
- the availability of the witness,
- the need for the witness to attend in person,
- the importance of the witness’s evidence to the proceedings,
- the views of the witness,
- the suitability of the facilities at the place where the witness would give evidence through a live link,
- whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.
Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court. Advocates in the magistrates’ court should also keep this in mind when making closing submissions.
In some cases, applications for evidence to be given via live link are not appropriate, and we will strenuously object. Where it is in our client’s interest to make such an application, we will ensure that a reasoned and strongly supported application is advanced.
Contact a criminal law solicitor
If you face court proceedings you will wish to instruct one of our solicitors to advise on witness requirements and how witnesses should give evidence. 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: November 2019
It is a common occurrence to come across suspects and defendants who feel extreme anger and frustration at being caught up in the criminal justice process.
That anger sometimes spills over into the public domain, and the free availability of social media platforms such as Facebook and Twitter can allow for an all too easy way to express frustration.
When those frustrations contain or imply an attack upon the complainant in their criminal case, there can be repercussions in the event of a conviction. It is therefore ordinarily wise for accused persons, and those close to them, to maintain a dignified silence, no matter how hard that might be.
Example 1: Stuart Hall
Former TV Presenter Stuart Hall incurred the wrath of the Court of Appeal in respect to remarks he made in a public statement. He referred to the allegations against him as ‘pernicious, callous, cruel and above all spurious.’
The court observed:
‘Whatever legal advice the offender had by then been given, he knew the truth. He knew that he was guilty of molesting the complainants. As we have said, this deliberate falsehood is a seriously aggravating feature. 68. The offender was an expert in the ways of the media. He was fully alert to the possible advantages of manipulating the media. At that date he was hoping to escape justice and he was, as we see it, attempting to use the media for the purpose of possibly influencing potential jurors. Whatever it may or may not have done to influence any potential juror, we have a clear idea of what it did to some of the victims. One victim describes how the offender’s outburst “absolutely incensed” her. She felt furious about his blatant lies. There is a similar impression from another victim.’
Example 2: Max Clifford
In the case of Max Clifford who made numerous public statements proclaiming his innocence, the court said:
‘In passing sentence the judge referred to certain behaviour of the appellant. Some of it had been commented on in the victims’ impact statements. They had been upset by it. The judge said that the “additional element of trauma” caused by the applicant’s “contemptuous attitude” was something that he would take into account in passing sentence.
The first statement was a forceful claim of innocence reflected later in the defence advanced, but not directly referring to the victims. The second statement was a reiteration of innocence followed by a vehement complaint about the fact that the victims were entitled to anonymity. The reiteration of innocence again did not directly impugn the victims. The complaints about anonymity relate to a feature of the criminal process. They concern a topic which arouses public debate from time to time and which has been the subject of different views in Parliament on different occasions.
Whilst we readily understand that victims who were eventually vindicated would find such comments upsetting, we think that great care needs to be taken by sentencing courts not to elevate denials, albeit vehement, into something deserving of further punishment in the absence of some more explicit traducing of the victim. The court, of course, is perfectly entitled to reflect these matters in withholding available mitigation since the offender has shown no sign of remorse. Similarly, an offender who has contested the trial will lose what might be substantial credit for a guilty plea. We think that these remarks, properly considered, would of course justify a withholding of mitigation, but they should not have been used by way of positive aggravation.’
Potentially aggravating comments
Taking these two cases together, it would appear that there is a fine line between statements that might reduce mitigation and those that may well aggravate the offence. Either-way, there may be a high price to be paid for making public pronouncements.
Before making any public statement about your case, it is essential first to take legal advice. We are well versed in the pros and cons of allowing a situation to play out in public and can advise you as to the best course of action.
Contact a criminal law specialist
By the time a decision is made to charge you with an offence, you will have already wanted to seek our independent advice.
If you are arrested or know that the police wish to speak to you about such a fraud arising from a holiday insurance claim 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.
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: November 2019
In a case this week involving Jet2 Holidays, Nottingham couple Karl and Laura Hughes claimed that they had suffered sickness while on a package holiday. They said they had food poisoning as a result of eating contaminated food or drink or swimming in the hotel’s unsanitary pool.
In witness statements, Mr and Mrs Hughes said that they became ill on the second day of their holiday and were acutely ill for the remainder of the holiday. The witness statements were sent to Jet2 with an initial letter of claim.
Jet2 looked at the social media accounts of Mr and Mrs Hughes. They saw photos and comments posted by them during the holiday, indicating they were physically well while away and had enjoyed their holiday. As a result, Mr and Mrs Hughes did not start proceedings against the company.
Contempt proceedings even where proceedings not commenced
Jet2 however, decided to ask the court to start contempt of court proceedings against Mr & Mrs Hughes. This was on the basis that the witness statements were false, relying on the social media posts.
Mr & Mrs Hughes denied that the information in their statements was false. They made further statements setting out that they had complained to the hotel manager, and despite their illnesses, they had “put up a front” that they were having a great holiday. The social media posts were not a true reflection of their mood at the time.
Initially, a court decided that proceedings for contempt of court could not be brought as the statements had not been served as part of court proceedings. A higher court did not agree saying that the test was whether the conduct in question involved an interference with the administration of justice either in a particular case or more generally as a continuing process.
The court went on to say that even though Mr and Mrs Hughes had not yet started proceedings when the statements were sent that they were still capable of interfering with the administration of justice.
The issue of whether Mr and Mrs Hughes were in contempt of court has not yet been decided, but Jet2 now have permission to bring those proceedings. The moral of the tale is just because something does not happen “in court” does not mean that you cannot be in “contempt of court”.
What could happen?
If Mr and Mrs Hughes are found guilty of contempt of court, they could be sent to prison for up to 2 years or receive a fine.
It can be very tempting to make a false claim against an insurer, but they are now fighting back in the civil courts. In addition, you could face criminal prosecution for fraud, leading in some cases to a prison sentence and criminal conviction.
Contact a specialist criminal law solicitor
If you are arrested or know that the police wish to speak to you about such a fraud arising from a holiday insurance claim 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.
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: November 2019
We are in the midst of a general election campaign, so it is perhaps not surprising that ‘law and order’ are featuring in the news as the main political parties fight for the popular vote.
While as a firm, we do not offer any party-political opinion, it is worthwhile taking a brief look at some of the recent announcements and scrutinise the reality of the pledges being made.
Child murder
The Conservatives propose that where a person aged at least 21 murders a child under 16 years of age the starting point should be a ‘whole life order’. This means that they would never be eligible for parole.
The Criminal Justice Act 2003 already contains measures in this regard. This is, on the face of it, a tightening up of those provisions. It is our assessment however, if enacted this provision is unlikely to impact on more than one or two cases each year.
Knife Crime
Knife crime remains high on the political agenda, and we have written about this topic in the recent past both here and here.
The Conservatives propose changes to stop and search powers with swift processing of those arrested before the courts. Any changes to stop and search provisions are likely to prove controversial, and there are concerns about whether the current resourcing of the criminal justice system is sufficient to cope with any such radical new initiatives.
Policing
The conservatives have already announced the recruitment of 20,000 extra police officers. Some observe that this will not actually replace the number of officer lost since 2010. Further, it is a fair assumption that if this target is reached, and all other things remain equal, more people will be arrested and brought before the courts. Again, some resource implications remain unaddressed in terms of court sitting days and prosecution resources.
The Liberal Democrats have pledged a further £300m for local policing.
Parole Board
The Conservatives have announced further changes to practice and procedure, to make the process more ‘victim-centric’ and transparent.
In addition the Conservatives propose raising the ‘victim surcharge’ by 25%. However, the most recent stories show that such penalties are often remaining unpaid, particularly as they also apply to those serving long custodial sentences.
Is this a ‘Law and Order’ election?
The Conservatives have returned to a traditional ‘law and order’ theme, tough on crime and tough on the causes of crime. As well as punishment, there are promises of better prison rehabilitation schemes and more robust non-custodial options.
Other parties do not lead on this issue in quite the same way, but all promise better resourced public services, which inevitably includes policing.
Keeping a watching brief
Whatever laws the next government brings forward, we remain committed to ensuring that the proper rights and protections afforded to all those we represent are safeguarded.
We continue to be vigilant and ensure that any legislative developments that are brought forward do not infringe your fundamental rights and freedoms.
How can we help?
Aside from keeping you informed of developments in the law, we offer a full range of services to our clients in relation to criminal law.
If you are arrested or know that the police wish to speak to you about any 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.
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: November 2019
On 10th March 2001, HRH Prince Andrew is alleged to have met and been photographed with a lady who has accused the Prince of sexual misconduct.
In a BBC interview, Prince Andrew throws ridicule on that suggestion and throws up two interesting observations in an attempt to establish an alibi:
“On that particular day that we now understand is the date, which is 10th March, I was at home, I was with the children and I’d taken Beatrice to a Pizza Express in Woking for a party at I suppose sort of four or five in the afternoon.
“…and then because the duchess was away, we have a simple rule in the family that when one is away the other one is there.”
Understandably, a member of the Royal Family may well remember a trip to Pizza Express, usual for the rest of us, but perhaps not a typical dining arrangement for the privileged few.
Does this stack up as an alibi?
In law, an alibi is defined as follows:
“…evidence tending to show that by reason of the presence of an accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.”
The fundamental problem with Prince Andrew’s account is that this alibi can only recover what must have been a relatively short period of time, the journey to and from the restaurant (about 40 mins each way assuming the Prince was at his Windsor home) and time at the party itself (imagine 2 hours), so in total may be no more than 4 hours or so.
Unless the timing of the allegation is such that it corresponds precisely with the time Prince Andrew claims to have been in Woking this alibi will be evidentially of little significance.
The next part of his account is also an alibi and amounts to a not unreasonable claim that he was at home (presumably looking out for the children, although he neglects to say this) because his wife was away.
Again, as a starting point, this is not at all unreasonable, but we have a direct contradiction of accounts and a photograph which has not been established to be anything other than genuine at the moment.
This clash of accounts would need to be tested by a jury in a criminal trial.
In short, mere assertions of alibi tend to be almost worthless. A robust defence strategy would nail down the times, and look for corroborative evidence. A prosecutor might easily find numerous occasions where both family members are away and ask about childcare arrangements – it is by no means unusual for members of the Royal Family to employ staff to look after children.
Regrettably for the Prince, his TV interview established nothing over and above a bare denial, which he had already given. Indeed it appears that other aspects of his account are already being challenged – incapable of sweating and not one to hug.
The relevant video can be found here.
When our clients come to give an account on such a vital issue such as alibi, we ensure that a robust and detailed case is presented to the court.
When reputation and liberty are at stake, you should leave nothing to chance.
Contact a specialist criminal solicitor
If you are arrested or know that the police wish to speak to you about any 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.
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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