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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.

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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:

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Prosecuting those who publish obscene articles is not prudish, despite what certain commentators would argue.  It is an offence under section 2 of the Obscene Publications Act 1959.

The maximum sentence of five years’ imprisonment for offences involving obscene articles may be warranted for activities which have disturbing and harmful knock-on effects.

Laws of this type remind us that free-speech and expression is subject to lawful limitations.

The relevant legislation

According to section 1 of the 1959 Act, one must decide whether the effect of the object in question is:

“…such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”

An important line taken in the case law is that obscene articles must go beyond simply being rude or disgusting.  The impact upon those who come into contact with and deal with the material is central to the question.

Defining the terms

In the case of Calder & Boyars Ltd from 1968, the court considered that the term ‘obscenity’ could encompass a wide range of misconduct.

The 1972 case of DPP v Whyte noted that while not everybody must be offended or influenced by the material the effect must be more than ‘minuscule’.

What does the term ‘article’ include?  It can involve virtually anything capable of displaying some kind of information and/or broadcasting audio and video content. That description includes things which are not primarily made for these purposes.

The term ‘publish’ has been interpreted remarkably widely.  For example, a single sale made by a developer of obscene photographs or creator of paedophilic writing to one customer can constitute publication. (Taylor [1995]; GS [2012]).

Additionally, the court decided in the case of Sheppard from 2010 that it was “fundamentally misconceived” to argue that ‘publication’ requires a ‘publishee’. It emphasised that this is a separate body of rules from libel law, so applying the same approach is wrong.

Expert evidence and obscene articles

While expert evidence is generally inadmissible in terms of what constitutes something obscene, it may be employed where the jury would otherwise not understand the effects of the obscenity upon a particular group (DPP v A & BC Chewing Gum Ltd [1968]).

What if you are investigated for this offence?

As you can see such offending is treated seriously by the courts so it will be important that you seek early advice from a criminal law solicitor.  The law is also complex and will involve an exercise of expert judgement.

We assess the evidence on your behalf, advise you as to plea and can give you an indication of likely sentence if convicted. We will advise you as to whether any defences are available.

As a result, if you are arrested or know that the police wish to speak to you about an offence relating to obscene articles 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.

 You can find your nearest office here.

Alternatively you can use the contact form below:

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The Environment, Food and Rural Affairs Committee’s report Controlling Dangerous Dogs calls for a full-scale review of current dog control legislation and policy to better protect the public. The report was published on 17 October 2018.

The full report can be found here.

Is there a problem with controlling dangerous dogs?

According to the Committee there is.

In 1991 the Dangerous Dogs Act outlawed certain breeds and types of dog to protect the public from attacks.  Since then the number of yearly fatalities has continued to rise.

Hospital admissions for dog attacks have increased by 81% since 2005. An unacceptably high number of victims suffer horrific life-changing injuries in these incidents. Even where no physical injury occurs, dog aggression can cause significant psychological distress.

At the same time, too many harmless dogs are being destroyed every year because they are banned and cannot be re-homed, even if they are well tempered and pose no risk to the public.

The Government has maintained that the breed ban is essential to public safety, arguing that these prohibited dogs pose an inherent risk. This inquiry found insufficient evidence to substantiate this claim.

The Committee agrees with the Government that it would be irresponsible to amend the breed ban immediately without adequate safeguards, but ‘that does not mean that the Government should continue to sit on its hands.’

The report argues that changing the law on Breed Specific Legislation is desirable, achievable, and would better protect the public, and that ‘…the Government’s lack of action on this front shows a disregard for dog welfare.’

What action needs to be taken?

The report makes the following recommendations in relation to controlling dangerous dogs:

• immediately remove the prohibition on transferring a banned dog if it has been behaviourally assessed by experts and found to be safe. This would prevent the needless destruction of friendly animals that could be safely re-homed;
• commission an independent evidence review to establish whether the banned breeds or types present an inherently greater risk than any legal breed or cross breed;
• commission a comprehensive review of existing dog control legislation and policy, with a view to developing an alternative model that focuses on prevention though education, early intervention, and consistently robust sanctions for offenders;
• ensure all future strategies are developed with a full and transparent commitment to evidence-based policy-making. If the independent evidence review concludes there is insufficient evidence to support the Government’s position on Breed Specific Legislation, this aspect of the law should be revised;
• introduce mandatory training and education courses for minor dog offences, similar to speed awareness courses for drivers;
• support wider dog awareness training for schoolchildren, and run a targeted awareness campaign for dog owners and the general public on safe human-dog interaction;
• increase support for local authorities and police forces to ensure they have the capacity to fulfil their duties; and
• engage with international partners to learn lessons and best practice from abroad.

Will anything change as a result of this report?

It remains to be seen how if at all, the government will respond to this latest report.

Sentencing for dangerous dogs’ offences already results in severe sentences, but the focus here is more on trying to ensure that harm is not caused in the first place.

How we can assist?

Dog owners are often unfairly stigmatised and face severe punishment if found guilty of dangerous dog offences.

The legislation is extremely complex, but our solicitors have an in-depth knowledge of this area of law.

If you face investigation or prosecution it is important that you seek early advice.

The benefits of having free and independent legal advice from one of our solicitors in any interview with the police can be found here.

Any interview may well take place with the suspect being a volunteer.  This does not mean that the police are taking the case less seriously.

More information about this type of interview can be found here.

You can read more about how to contest destruction orders made with a view to controlling dangerous dogs here.

Contact your nearest office

We provide nationwide advice and representation in criminal law matters from our offices across the East Midlands.

You can find your nearest office here.

Alternatively you can use the contact form below.

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Nottingham solicitor advocate Lauren Fisher recently represented a client before Lincoln Crown Court.  He was jointly charged with another with a single allegation of robbery in a dwelling.  Two other defendants were involved in the trial. One defendant had already pleaded guilty to his involvement in two robberies, and our client was jointly charged with one of those robberies.

This was in effect a re-trial, an earlier trial having been abandoned due to the prolonged bad weather.

Robbery in a dwelling house

The charge that affected Lauren’s client was one of robbery in a dwelling.  The prosecution case was that he, along with the co-accused, had attended the house of the victim.  A taser had been produced.  Demands were then made that a large sum of money be transferred using internet banking.  In the event only half the amount was transferred, but the victim was forced to contact the bank by telephone to authorise the transfer.

Afterwards, it was said that our client and the co-accused left the property together.

Lauren’s client accepted that he had been present at the incident.  He had given his friend, the co-accused, a lift to the address and gone in because his friend did not know how long he would be.  At not time had he seen a taser, or hear the noise of one being discharge.  He did not know that money was to be stolen.

Once in the property the co-accused locked the door.  Once he was locked in, our client was unable to leave.  He took no part in the robbery and was as frightened as the victim of the offence.

The issues for trial

The important issues in the case were:

• did our client know about the other robbery on the indictment that also involved this victim?
• had he seen the taser at the point of entry?
• could the prosecution establish that our client had knowledge of what was to happen before we entered the address?
• had he participated in the offence at all?

The case involved careful cross examination of a witness who had been subject to two frightening robberies, in particular the second incident that we were charged with.  It was not disputed that either robbery had taken place, just whether our client was involved in any way.

As it was a re-trial, part of the preparation involved listening to the earlier evidence recorded on the court DARTS system.  This would allow cross examination on any inconsistencies between the statements and that evidence, and any evidence given at this trial.

Careful cross examination by solicitor advocate

Through cross examination Lauren was able to confirm that it would not have been inevitable that her client would have seen the taser.  The victim was not sure at which point they had seen the taser.  He also changed his account as to whether our client had left the house or not.  He perhaps struggled, in the end, to point to anything that our client had done or challenge the suggestion that we were scared of what was going on.  There were inconsistencies in his evidence that could not be explained.

A persuasive closing speech

Lauren had to approach her closing speech carefully.  She did not suggest that the victim was lying. Instead, she highlighted that it was likely that the witness believed what he was saying, but was mistaken.  Although he had been a victim of a crime, the nature of the incident meant that he was easily confused about the detail.

The jury was directed towards the burden and standard of proof and how that related to all the evidence that had been heard.  Having heard all of the evidence and the speeches in the case, Lauren’s client was found not guilty.

This was fortunate for her client, as the starting point after trial for an offence of robbery in a dwelling house in circumstances such as these was thirteen years in prison.

Instruct VHS Fletchers in your Crown Court case

We use a combination of in-house solicitor advocates and barristers, as well as specialists from the independent bar, to ensure that you have the representation that you need for your Crown Court case.

We aim to provide continuity of representation with a litigator and advocate assigned to your case at an early stage.

You can read more here about why you might want to consider instructing us as your solicitor.

Follow this link to see how we prepare serious cases of sexual assault for trial at the Crown Court.

You can read some examples of cases successfully defended at trial by our solicitor advocates both here and here.

You can contact us through your nearest office.  Details can be found here.

Alternatively you can use the contact form below.