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Two years ago, Nottinghamshire Police decided to label misogyny and offences targeting women as hate crime or hate incidents.

Two local universities recently undertook a report entitled “The Misogyny Hate Crime Evaluation”.  This report recommends rolling out the policy nationally.

The full report can be found here.

Misogyny hate crime is defined as “incidents against women that are motivated by the attitude of men towards women and includes behaviour targeted at women by men simply because they are women.”

 

This definition can include behaviour that is not criminal.  These are recorded as hate incidents rather than hate crime, so something such as wolf-whistling may be recorded as a hate incident.

The policy does not criminalise that behaviour.  It may, however, result in a discussion, for example, with building site managers if their workers are behaving that way.

Misogyny hate crime on the continent

In Belgium, however, such behaviour can be criminal.  A man has been convicted under a new law which does criminalise sexism. He was stopped driving a car for breaking the highway code and told the female police officer to do a job “adapted to women”. He was fined €3,000 for insulting the officer because of her gender.

The offence in Belgium is expressing contempt toward a person because of their sexuality or treating them as inferior due to their sexuality.   If the behaviour complained of entails a serious attack on their dignity, it is punishable by up to 12 months in prison.

In France, they are preparing to create an offence of street harassment that is “sexist and sexual outrage”.  Meanwhile, in Stockholm, sexist advertising has been banned.  Our London Mayor, Sadiq Khan, has attempted to ban body shaming adverts.

What will happen in the UK?

Chief constables from the United Kingdom met in July 2018 to discuss the issue and whether the policy in Nottinghamshire would be rolled out nationwide.

The issue has also prompted discussion in Parliament over the autumn.

These developments in the UK and other countries demonstrates how the law is continually evolving. It may be that such behaviour will be a statutory aggravating feature of an offence when sentencing or disposal is dealt with, or it may become an offence on its own.

How can we help?

 Allegations that involve elements of sexism or misogyny are always likely to be treated more seriously than cases where it is not a feature.

As a result, 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 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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The 2015 documentary series Making a Murderer follows the story of two men from Wisconsin who were convicted of sexually assaulting and murdering a woman.

One of the convicted was an impressionable teenager called Brendan Dassey.  Dassey’s conviction was overturned in 2016 (and confirmed on appeal in 2017) on the basis that his ‘confession’ to the murder was coerced by police officers who exploited his vulnerable character.

What is the law in the England and Wales?

Provisions in the Police and Criminal Evidence Act 1984 allow courts to reject confessions of this kind on the basis that they were obtained ‘oppressively’ or are unreliable.

The relevant statutory provisions relating to the admissibility of confessions are ss. 76(2)(a) and (b) and 77 of the Act.

What does “oppressive” mean?

The term ‘oppressive’ has caused problems for the courts. It seems to be agreed that oppression implies some “impropriety” which compromises the confession’s veracity (Fulling [1987] QB 426).

Uncertainty exists, however, as the same sort of behaviour in different cases has led to the confession being excluded in one but not the other (see Paris (1993) 97 Cr App R 99; L [1994] Crim LR 839).

What about unreliability?

Aside from oppression, confessions may be excluded on the basis of unreliability. This unreliability may come about via “anything said or done” or something problematic concerning the circumstances in which the ‘confession’ was made.

An important point to note is that the suspect’s own conduct cannot undermine a confession (Goldenberg (1988) 88 Cr App R 285).

Another important reason to exclude a confession on the basis of unreliability is where the suspect is mentally unfit. A separate section of the Police and Criminal Evidence Act 1984, section 77,  deals with this.  In particular, the act seeks to protect suspects who may be suggestible and may simply go along with police officers’ leading questions about an alleged offence.

Deciding on the admissibility of confessions

The actual process for deciding whether a confession can be admitted is a ‘voir dire’. That is essentially a mini-trial within or alongside the main trial. Section 76(2) of PACE gives guidance on this point.

The prosecution must prove to the criminal law standard that the confession was not obtained in the way alleged by the defence, otherwise it will be excluded. And, although there is some disagreement, the standard position appears to be that the defendant’s evidence at the voir dire cannot be admitted during any trial for the substantive offence (Wong Kam-ming [1980] AC 247).

How we can help advise on admissibility of confessions.

Many of the problems that can arise with confessions will be removed if you have a solicitor with you to provide advice when you are interviewed.

As a result, 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 legal advice can be found here.

If you have already been interviewed or face court proceedings we will be able to advise you about the admissibility of any confession you are said to have made at any stage where you dispute the accuracy or reliability of it.  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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There are two main offences that are prosecuted in relation to benefit fraud.  One involves dishonesty on behalf of the benefit claimant while the other does not.

Benefit fraud – the dishonesty offence

It is an offence to dishonestly make a representation in order to obtain benefit.  This offence includes circumstances where there has been a dishonest failure to promptly notify a change in circumstances, as well as making a claim that is dishonest from the outset.

Benefit fraud where a claimant is not dishonest

It is an offence to knowingly make a false statement to obtain benefit.  Again this can be in an initial claim for benefits or failing to give prompt notification of a change in circumstances.

What does this all actually mean?

The following definitions are given:

Dishonesty

This has the normal meaning that is used in criminal offences.

The lesser offence, of course, does not require dishonesty but does require proof of knowingly failing to notify.

The test for dishonesty was recently revisited by the Supreme Court and the result may well be that it is now easier to prosecute for dishonesty based benefit fraud.

Change in circumstances

There must be proof that the offender knew there was a change of circumstances and that the change would have effected a change in benefit.

Such changes in circumstance might include starting to live with a partner or gaining employment, or an inheritance leading to a change in finances for the better.

“Promptly notify”

Prompt is to be given its natural meaning and is a matter of fact. It is for the prosecution to prove that it was not prompt. It is therefore essential to explore all of the surrounding circumstances as this may provide a defence, not only mitigation.

Are there other offences?

There are other offences of fraud and false accounting related to benefits that are not covered in this article.

What is the likely sentence for benefit fraud?

The non-dishonesty benefit fraud offence an only be dealt with in the Magistrates’ Court and carries a maximum term of imprisonment of 3 months.

The offence involving dishonesty can be dealt with at the Magistrates’ Court or the Crown Court.  At the Crown Court it carries a maximum of seven years imprisonment.

The main factors for consideration in sentencing will be:

• the length of time of the over payment
• the total value of benefits overpaid
• whether or not the claim was dishonest from the outset.

A claim that is of high value, over a sustained period and which was dishonest from the beginning is more likely to attract a term of imprisonment.

The full sentencing guideline can be found here.

How can we help you defend a benefit fraud allegation?

Our advice, as always, is to seek legal advice as soon as you know that you are being investigated for an offence.

Early legal advice from an expert criminal solicitor may help you set out any defence that you might have in interview, or provide mitigation that might help you avoid a prosecution through the courts.

If a case gets to court then benefit fraud offences frequently generate vast quantities of paperwork.  Our solicitors, litigators and advocates have a great deal of experience in considering such evidence.  We will help you prepare your defence or mitigation upon a guilty plea.

Our involvement may mean a lesser value is given to any over payment.  This can have a direct impact on the potential sentence.

If you are in receipt of benefit then you are likely to receive free legal help under the legal aid scheme at the interview stage.

You can read more about the availability of criminal legal aid here.

You can find your nearest office here.

Alternatively you can use the contact form below:

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A suspended sentence is a term of imprisonment that is suspended so that you do not go into custody immediately.  Further, you will not go into custody if you comply with the conditions attached to the order.

Who can get a suspended sentence?

In the Magistrates’ Court, any sentence of 6 months’ imprisonment (12 months for two or more either-way offences) or less can be suspended.  In the Crown Court, any sentence of 24 months or less can be suspended.

The minimum length of imprisonment for a suspended sentence is 14 days.

It follows, therefore, that if your offending is deserving of a sentence above the maximum level, or you are sentenced as a dangerous offender, you will not be able to receive a suspended sentence.

A suspended sentence is also not available for youths.

When can a sentence be suspended?

The sentencing court will first consider whether or not a custodial sentence should be imposed.  In legal terms the court decides whether the “custody threshold” has been passed.

If custody of one of the lengths discussed above is imposed, the Court can then move on to decide whether it can be suspended or not.

In considering whether the sentence can be suspended the Court will look at the particular circumstances of the offence and offender and consider a sentencing guideline that applies to this scenario.

Factors to consider would be:

• whether there is a realistic prospect of rehabilitation
• strong personal mitigation
• the impact of immediate custody on others.

Mitigating against a suspension would be that

• the offender is a risk or danger to the public
• the most appropriate punishment is immediate custody
• a poor history of compliance with court orders.

How long can it be suspended for?

The sentence of imprisonment can be suspended for a period from six months up to two years.  This is called the ‘operational period’.

What conditions may be imposed?

A sentence is suspended on condition that you do not commit any further offences during the operational period. In some circumstances an order may have that single condition.

Additionally, you can have a suspended sentence order that is subject to further requirements similar to this in a community order. This can include

• unpaid work
• a curfew
• supervision with the Probation Service.

If you are subject to such an order, it is also suspended on condition that you comply with the requirements imposed.

What happens if I breach the order?

You can breach an order by either committing an offence within the operational period or failing to comply with any requirements that are imposed.

The starting point that will be adopted by the court if you are in breach of an order is to activate the period of imprisonment. The length of imprisonment may be reduced to reflect the level of compliance with the order and any of the requirements.

If it is unjust in the circumstances to activate the sentence then the court has other options.   You may be

• fined for the breach,
• made subject to further or more onerous requirements
• the operational period may be extended.

 How can we help?

As well as advising you whether you might be able to receive a suspended sentence, we will also be able to help you put yourself in the best position for the court to treat you leniently.

This process can start as early as advice prior to a police interview under caution.  As a result, 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 and ask for VHS Fletchers.

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.

Some examples of cases where we have helped secure a suspended sentence for our clients can be found here:

Drug Offences

Motoring Offences

Conveying Articles into Prison

GBH

 You can find your nearest office here.

Alternatively you can use the contact form below:

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Importation of Indecent or Obscene Articles – a Childlike Sex Doll?

There has been a surge of people charged with importation of indecent or obscene articles, contrary to the Customs and Excise Management Act 1979 and the Customs Consolidation Act 1876.

On the face of it that might seem strange. Why are people suddenly being arrested and sent to prison for an offence under a statute that is 141 years old?

A Gap in the Law?

The answer is that the Crown Prosecution Service are using the old offence to address a very modern gap in the law. The surge in cases follows a similar increase in seizures of childlike sex dolls. Border Force officers have seized 123 such objects since March 2016. This figure would increase if the number of seizures by police forces were also known.

The ‘gap in the law’ arises because it is not illegal to possess a childlike sex doll.

The Crown Prosecution Service has moved to address this. In June 2017, in the ‘first case of its kind in the UK’, a man was convicted of importing an indecent object. He had purchased a doll online, it was shipped from Hong Kong but was then seized en route to him at East Midlands Airport.

VHS Fletchers are no strangers to this development having also  represented clients charged with an offence in similar circumstances.

The Law

The offence itself is contrary to section 50(3) Customs and Excise Management Act 1979. This states that it is an offence for a person to import any goods contrary to any prohibition, with the intention to evade that prohibition.

It is what is called an either-way offence, so can be dealt with in the Magistrates’ Court or the Crown Court. It carries a maximum sentence of seven years at the Crown Court.

Where does it say that a childlike sex doll is prohibited?

Section 42 of the Customs Consolidation Act 1876 says:

“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’ is as follows:

“Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.”

It is for the Prosecution to prove that the Defendant either imported the item or was concerned in its importation.

The point as to whether or not a childlike sex doll is an obscene or indecent item was challenged at Canterbury Crown Court.

In that case, lawyers for the defendant had argued the doll was not covered by the law.  His Honour Judge James dismissed the argument, saying “any right-thinking person” would find the doll obscene.  This decision may raise the interesting question of where we draw the line regarding obscenity. However, for the purposes of this specific offence (i.e. childlike sex dolls) it is difficulty to disagree with the Judge in that case.

Some further information about what constitutes an obscene article can be found here.

The prosecution has issued some guidance on the considerations prior to bringing proceedings.  These can be found here.

Sentencing Guidelines

There are no sentencing guidelines for this offence. The maximum sentence is seven years. The reported cases so far seem to be attracting sentences of around two years, although clearly each case must be judged on its individual facts.

Further Thoughts

As it stands, possession of a childlike sex doll on its own is not an offence. There must be proof of importation. If the item was manufactured or warehoused in the UK prior to purchase, the purchaser has not committed an offence.

Considering the level of press interest that this offence has now received, we might have expected Parliament to address this issue with legislation by now.  Of course, other more pressing issues are tying up the time of Parliament.

An alternative view, however, is presented by Juliet Grayson, chair of the Specialist Treatment Organization for the Prevention of Sexual Offending (StopSO). StopSO is a charity which prevents sexual offending through therapy. She has suggested that just as methadone is used to treat recovering heroin addicts, childlike sex dolls can be used to treat paedophiles

This view raises a number of questions as to how it would be managed. If it is closely monitored, assists in the rehabilitation of an offender and prevents re-offending (much like the methadone example that she gives) it must be worth consideration.

On a final note…

It occurs that while possession of such an item is not illegal, a photograph of one could be. If the doll is, for example, photographed naked it could be argued that that photograph then constitutes a ‘pseudo’ indecent image of under the Protection Act 1978.

Contact an expert criminal solicitor for advice

VHS Fletchers is one of the few solicitors’ firms in the country who has the experience of representing a client charged with this offence.

The law is complicated and the potential consequences of a prosecution severe.

As a result, if you are arrested or know that the police wish to speak to you about an offence relating to the importation of an obscene article 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: