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Raising the issue of modern slavery – can it provide a defence to drug dealing and other criminal offences?

The short answer is: maybe.

Section 45 of the Modern Slavery Act 2015 provides a defence to specific criminal charges where it is shown that they were committed under a compulsion due to slavery or exploitation where a person is 18 or over, or as a direct consequence of slavery or exploitation where a suspect is under 18.

The latter test, for children, is less difficult to establish. It is a defence similar to duress.

This defence could, for example, be used for drugs offences committed as part of a ‘County Lines’ drugs ring.

What else is modern slavery a defence to?

The modern slavery defence can be used for any criminal offence not listed in Schedule 4 of the Modern Slavery Act 2015.

It can’t be used for serious crimes like

• murder
• manslaughter
• kidnapping
• piracy
• serious violence
• firearms offences
• robbery
• burglary
• arson
• criminal damage
• most sexual offences, or
• modern slavery offences themselves.

There are other offences to which the defence does not apply.

It can be used as a defence to any other crime. It is used for victims of ‘County Lines’ drugs offences but also applies to most immigration offences, minor assaults, shop thefts, or conspiracy to do any of these things. Anyone who is trafficked or exploited can potentially benefit from it.

Children may be exploited for a variety of reasons by gangs and used to carry and supply drugs. Children who are particularly vulnerable are often targeted, and they may feel that they can’t tell anyone in case they are arrested and punished.

What needs to be proved?

The defence requires several things, depending on a person’s age. In both cases, they need to be a victim of slavery or exploitation.

Those over 18 rely on s.45(1), where they are not guilty if:

1. The crime is committed because they are made to do it
2. They are made to do it for some reason connected to the slavery or exploitation
3. A reasonable person, with the same characteristics, would not have had a realistic alternative in that situation.

A person under 18 relies on s.45(4), where they are not guilty if:

1. The crime is committed as a result of the person being or having been in the past, a victim of slavery or exploitation, and
2. A reasonable person, with the same characteristics, would have done the same.

The defence for those under 18 is less difficult to establish, reflecting the increased vulnerability of children.

A person has to raise enough evidence for it to be possible that they are a victim of slavery of exploitation within the meaning of the Act. The prosecution will have to make the Magistrates’ or jury sure that the defence does not apply.

If they cannot, a person then has to show it’s possible that the offence was carried out either under a compulsion relevant to or as a direct consequence of that slavery or exploitation, dependant on the age of the defendant. This, again, will have to be disproved so that the tribunal is sure it  does not apply.

If the prosecution cannot disprove either of these things then the defence succeeds.

How can we help you present your defence?

Modern slavery 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.

We are experts at dealing with vulnerable clients and children, including many victims of exploitation by ‘County Lines’ drug gangs.

As a result, if you are arrested or know that the police wish to speak to you about a criminal offence and you wish to consider whether you have a defence, 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:

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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.

Locally, however, it appears that such substances as ‘laughing gas’ or Nitrous Oxide remain a popular recreational drug and you can read more about a current campaign here.

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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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:

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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:

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Drones and the Law

Unsurprisingly, here is a legal framework that governs the use of drones.  A number of different drones are available for the public to buy.  There are a number of potential risks to ownership, and it would be helpful for any owner to know the relevant information about drones and the law, including an owner’s responsibilities and restrictions on their use.

Drones are again making the news with stories of substantial flight disruptions caused by drones being flown close to airports or the steps being taken to stop drones flying contraband into prison.

What are drones?

A ‘Drone’ is any object that can be flown without a human pilot. The definition ranges from armed technologies used in military operations to smaller gadgets that any of us can buy.

It is the second category that will be the focus of this article. These items are controlled remotely from either a handset or mobile phone.  They may also have a camera attached which provides a live-feed to the controller or can take still photography.

At their best they provide educational, professional and leisure pursuits. Various models are available which will vary in size, speed, range and price.

When do drones become a problem?

Drones become a problem when they interfere with other objects using the same airspace. For example, they can present a problem for both military and civilian aircraft. Although they are of relatively small size, a collision can have disastrous consequences. Such incidents are most likely to happen when drones are flown too high or too close to areas where aircraft are taking off and landing frequently.

What are the rules?

If you have bought a drone for personal use, then law imposes some responsibilities relating to your use of that drone.  Any breach of these duties can result in your prosecution.

It is advisable to consult the Civilian Aviation Authority Air Navigation Order 2016, specifically Articles 94, 95 and 241.  You can download the ‘Drone Code’ here.

You must understand your essential duties as a drone owner, many of which are common sense:

• know how to fly your drone safely, and do so within the law
• understand that the operator is legally responsible for every flight
• keep your drone in sight at all times – stay below 400ft or 120m
• don’t fly your drone over or within 150m of a congested area or organised open air assemblies of more than 1000 people
• never fly within 50 metres of a person, vehicle or building not under your control
• ensure any images you obtain using the drone do not break privacy laws
• avoid collisions – you should never fly a drone near an airport or close to aircraft.

One important aspect of drones and the law is that it is a criminal offence to endanger the safety of any aircraft in flight.

If you break the rules, you could threaten lives and also face prosecution.  In some cases this can result in imprisonment or a substantial fine.

For example, anybody caught breaching the rules in relation to airport boundaries could be charged with ‘recklessly or negligently acting in a manner likely to endanger an aircraft or any person in an aircraft’ and face a fine of up to £2500 or up to 5 years in prison.

Are there extra rules when using drones for commercial purposes?

It may be that you intend to use a drone for commercial purposes.  For example, an estate agent might wish to take aerial video or photographs of properties for sale.

If this is the case then then permission must be sought from the Civilian Aviation Authority. It is also expected that you will attend an accredited course which will test your knowledge of and competence with drones.

What about cross-overs into the military’s use of drones?

Any drone use completed for the Ministry of Defence is regulated by the Military Aviation Authority.  This might include tasks such as surveys at height, photography and other multimedia activities.  Anyone likely to undertake such work should look at Regulatory Articles 1600, 2320 and 2321 for specific requirements.

New government plans

Over the summer of 2018 the Government launched a public consultation on new proposals that include:

• whether the 1km flight restriction around aerodromes is sufficient
• police issuing fixed penalty notices to people flouting drone laws
• new counter-drone technology to protect public events and critical national infrastructure, as well as stopping contraband reaching prisons
• a minimum age requirement of 18 to be a small drone operator
• apps upon which flight plans would be uploaded prior to take-off

Fixed penalty notices may be introduced for the following offences:

• not producing proof of registration at the request of a police constable
• not producing evidence that a flight plan or other permissions had been obtained or submitted
• not complying with a police request to land a drone
• flying a drone without the necessary competency

Drone users in the UK will have to register with the CAA and take online safety awareness tests from November 2019 for drones weighing at least 250g. A failure do do so could lead to a fine of up to £1000.

Drones weighing more than 250g could also be banned from flying near airports, or above 400 ft, in a crackdown on unsafe flying.

Police will also be given new powers to seize and ground drones which may have been used in criminal activity.

The bottom line

Drones can be fun and useful but come with their fair share of responsibilities. If you follow the principles highlighted above, you will be much less likely to fall foul of the rules and regulations governing this exciting new technology.

If, however, you are to be spoken to by any authority for breach of the rules and regulations then you ought to seek advice.  Any interview is likely to be with the intention of considering whether a prosecution ought to be brought before the court.

We offer independent legal advice on drones and the law for such interviews whether in or out of office hours.  Your nearest office can be found here although we provide our services nationwide.

Alternatively you can use the contact form below.