Since the change in the rules relating to police bail a postal requisition has, in many cases, replaced a formal police charge in bringing a defendant to court.
What is a postal requisition?
A postal requisition is a summons to court, telling a defendant what they have been charged with. It will also contain the date and time that you must attend a particular Magistrates’ Court.
They will be used in cases where the police do not seek bail conditions. They will be appropriate where there is no language or communication problems and there is a known fixed address for the defendant.
When will I receive one?
Although a postal requisition will be used in motoring offences in a similar way that a summons would have been issued, they are also used for a wide range of criminal offences including the most serious.
As a result, if you have been interviewed by the police as either a volunteer or while under arrest and been released under investigation the first thing you hear about the outcome of the investigation might be the postal requisition.
Unfortunately, the timing of the requisition will be hard to predict. It could be received within weeks of a police interview, or months afterwards.
What happens if I don’t attend court?
If you fail to attend court in answer to the postal requisition then it is likely that a warrant without bail will be issued for your immediate arrest. This means that the police will arrest and detain you at a police station in order to bring you before the next available sitting Magistrates’ Court. This could be on a Saturday or Bank Holiday and you could spend many hours in custody.
Bearing in mind the possible delay in sending the requisition it is extremely important that you check your post regularly and keep the police informed of any change of address to avoid an unnecessary arrest.
A helpful reminder outside our Chesterfield office
If we have provided you with free and independent legal advice in your police interview then we will make regular contact with the police to ensure that you know what is happening with the investigation. We will be able to keep the police informed on your behalf of any changes of address. We will also be able to tell you when the investigation has been concluded and if you are likely to have to go to court.
Even if we have not advised you in interview, please feel free to contact us afterwards. We will be able to advise you on the likelihood of further interviews, and provide the same service to you as we would to those who we represented in interview.
What should I do if I receive a postal requisition?
Hopefully you will have already taken advantage of our free and independent legal advice at the police station so in those circumstances simply contact the lawyer at this firm who dealt with your case.
We will be able to provide you with advice as to the availability of criminal legal aid or discuss private funding with you. We will also be able to make a request for the papers in your case prior to the first hearing and begin to take instructions and advise you as to plea.
VHS Fletchers offices across the East Midlands
This will ensure that you have representation at this all important first hearing and will have investigated any defence that you might wish to put forward.
The simple answer is no, you do not have to give the police your phone PIN.
There are, however, potential consequences in certain circumstances if you refuse.
When can the police ask for your phone PIN?
It is arguable that the police could ask you whenever they wanted for your phone PIN, you can always say no. The critical issue is whether they can take further action if you say no.
When can they take this further action?
Section 49 of the Regulation of Investigatory Powers Act 2000 contains the relevant power.
If your phone has been seized, or in circumstances where police have the power to inspect it, the police can give you notice that they require you to provide the phone PIN or “encryption key” to allow them access. The same applies to other devices such as computers.
Written permission must be obtained from a Judge or a District Judge for the giving of a notice under section 49, this then provides “appropriate permission”.
The person with “appropriate permission” requesting the information must believe, on reasonable grounds:
that the key or PIN is in your possession;
that the notice is necessary for the grounds listed below, or it is necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or duty
the notice is proportionate; and
that it is not reasonably practicable for the person to obtain possession of the protected information without the giving of a notice.
A notice is ‘necessary’ if it is necessary:
in the interests of national security;
for the purpose of preventing or detecting crime or
it is in the interests of the economic well-being of the UK.
What would “notice” be?
A notice has to be
in writing (or otherwise recorded)
set out the protected information to which it relates
set out the grounds for requiring it
specify the office, rank or position of the person giving it
specify the office, rank or position of the person granting permission for it to be given
specify the time by which the notice is to be complied with
set out what disclosure is required and how it is to be provided.
What is concerning is that people are very often given documents that leave the impression that giving the phone PIN is compulsory, when in fact they are mere requests not authorised by any higher body.
As a result you should always seek the advice of a specialist criminal solicitor before complying with any request.
What if I do not know the PIN or still don’t want to give it?
If you do not comply with a properly given notice, you can be prosecuted. If you know the information required and refuse to provide it, you can be sentenced to a maximum of 2 years imprisonment or 5 years imprisonment for an offence involving national security or child indecency.
If you genuinely do not know the information you can put this forward as a defence to the offence.
The legislation says that a person will be taken as not being in possession of a key (or PIN) if “sufficient evidence of that fact is adduced to raise an issue with respect to it and the contrary is not proved beyond a reasonable doubt”.
What sentences have been given?
Andrew Garner failed to comply with a notice, he said that he had forgotten the PIN but was found guilty and given eighteen months imprisonment.
Tajan Spaulding pleaded guilty after refusing to provide the PIN for his iPhones and was given eight months imprisonment.
Stephen Nicholson was given 14 months imprisonment for failing to provide his Facebook password to the police during the investigation into the murder of Lucy McHugh.
How can we help?
People have been to prison for not providing the PIN for their phone, The consequences can be severe. This article can only ever be a simple overview of the power.
We can advise you whether the notice is lawfully made and whether the request is made in appropriate circumstances. We will advise you whether you have a defence that can be put forward in court.
Monkey Dust – The cannibal drug that makes you smell of vinegar and prawns
What are you talking about?
Monkey dust is a synthetic drug, a type of new psychoactive substance. It is similar to other cathinone drugs such as MDPV, methylone and magic crystals.
In the USA it is known as “Zombie Dust” or “Cannibal Dust” due to one of the reported effects of the drug being users trying to eat their own face.
I’ve never heard of it?
The drug has been around for a while and was formerly one of the drugs referred to as “legal highs”.
In recent months, it has started to become more prevalent in some areas of the country and, undoubtedly, the use of it will spread.
In the Midlands, there have been news reports of people climbing buildings and trees and running into traffic while under the influence and attacking people who approach them.
What does it look like?
The drug is a white powder.
What are the effects?
It is a psychoactive substance with effects similar to PCP such as high body temperature, paranoia, agitation and hallucination; it can also make users impervious to pain. Frequently users have no recollection of their behaviour while under the influence of the drug.
Heavy users have reported the appearance of lesions on the skin and a smell of prawns or vinegar from their sweat.
Lecturers from Staffordshire University, Sarah Page and Em Temple-Malt spoke with people in Stoke-on-Trent about the use of NPS. One user said that he had been arrested for a breach of the peace after “arguing with a garden gnome”.
Although amusing, it demonstrates the irrational behaviour that can take place while under the influence, the drug is said to be “worse than spice” and can cause extreme violent behaviour.
Is it illegal?
Yes.
Monkey Dust is a Class B drug.
This means that it is illegal to possess and also to sell, give away or possess with intent to supply it. Possession can result in up to 5 years imprisonment while supply offences carry up to 14 years imprisonment.
If you are arrested or know that the police wish to speak to you about an offence of supplying drugs then make sure you insist on your right to free and independent legal advice.
Fly on the wall documentaries are increasingly popular, particularly when they show the workings of the criminal justice system. Such programs may, particularly when they rely on interviews with the police, present a no comment interview as harmful to a suspects case.
While there may be instances where a person is not helped by failing to give an account, there are many occasions when there is substantial benefit to a no comment interview.
Exercising your right to silence
Choosing not to answer questions is your legal right. The reasons for refusing to answer questions my be complex. You would certainly be best advised to seek expert legal advice before doing so.
Choosing a no comment interview might mean that no further action is taken by the police at the conclusion of the police investigation.
Here are two examples where accredited police station representative Rob Lowe at our Chesterfield office provided advice on the right to silence. His clients conducted a no comment interview. Ultimately it was to their benefit.
No comment interview following assault allegation
Accredited police station representative Rob Lowe
Rob was instructed to attend for a voluntary interview. His client was being investigated as an allegation had been made that he assaulted a neighbour. The neighbour was said to have stepped onto his land to remonstrate with a third party who was driving a tractor.
The allegation was that Rob’s client had then shoved the neighbour.
Upon taking his client’s instructions, he confirmed that he had been present and approached the complaint. He accepted putting himself between the complainant and the driver. This was to highlight to the neighbour that he was putting himself in a dangerous position bearing in mind the type of vehicle.
Our client denied touching the complainant at all.
Rob assessed the police evidence as being weak. Without any form of admission it seemed unlikely that it would proceed to court. In order to remove any risk that his client would go beyond his instructions when interviewed, Rob advised his client to use a prepared statement and then conduct a no comment interview.
Rob’s assessment of the case was correct because after the interview took place the police confirmed that no further action would be taken.
No comment interview where no complaint made
On this occasion following a client’s arrest, Rob was instructed to advise a suspect who had been arrested of assault and criminal damage within a domestic setting.
Before interview, Rob discovered that the police had no statement of complainant from the only witness who could support a prosecution. There was no other admissable or independent evidence.
Based on his assessment of the evidence, Rob advised his client that he ought to exercise his right to silence in interview. As a result, he made no comment replies to questions.
As no one was accusing his client of wrong doing there was no need to answer questions. Again, Rob’s client was released without any charges from the police.
Instruct a criminal law specialist to advise on a no comment interview.
These are just two examples of how instructing us at the point of police interview can benefit you and ensure that we protect your interests.
The Sentencing Council has published a new guideline for how those guilty of child cruelty offences should be sentenced. It covers three offences:
cruelty to a child;
causing or allowing a child to die or suffer serious physical harm; and
failing to protect a girl from the risk of female genital mutilation (FGM).
Sentencing Council member Mrs Justice Maura McGowan said:
“Child cruelty offences vary greatly. They can range from a one-off lapse of care which puts a child at risk of harm to a campaign of deliberate cruelty which leads to serious injury or even death. This new guideline will help ensure sentences that reflect what the offender has done and the harm to the child. It states for example that cases involving very significant force, or multiple incidents of serious cruelty should always be treated as being in the highest category of culpability. The guideline will also assist sentencers in cases where the offender has also been the victim of abuse from another.”
When does the guideline come in to force?
The sentencing guideline for child cruelty offences applies to all cases sentenced on or after 1 January 2019. This means that cases charged before that date may be affected by the changes if there is to be a sentence after that date.
Does it apply to all offences of causing harm to a child?
No, it doesn’t.
When someone is prosecuted for harming a child, the offence charged will vary according to the circumstances. It is important to distinguish the offences in this guideline from other offences that may be charged, such as assault, murder and manslaughter.
There are also cases in which a child is harmed and one person is charged with assault and another with allowing the child to suffer serious physical harm.
Publication of the guideline marks the first time that there has been sentencing guidance for the offences of causing or allowing a child to die or suffer serious physical harm and failing to protect a girl from the risk of FGM.
The sentencing guideline also provides revised guidance for the offence of cruelty to a child. This replaces the earlier guidance issued in 2008.
Child cruelty offences are complex and can vary greatly. As a result the guideline has been designed to assist with an effective assessment of each case that comes before the courts to help ensure consistent and proportionate sentencing.
Some offenders may be incompetent parents, while others may deliberately inflict harm on children in their care. Child cruelty offences could include parents or guardians leaving children home alone, neglecting them or putting them at risk through alcohol or drug abuse or subjecting them to sustained and deliberate ill-treatment and violence that leads to serious injury or death.
Offences can also involve a parent or guardian having failed to act to protect their child from ill-treatment by someone else in the household, which can be due to them being victims of violence and intimidation from the same person themselves.
Is there anything new in the approach to sentencing?
In assessing harm to victims, as well as physical and psychological harm, the guidelines for child cruelty offences take into account for the first time the developmental and/or emotional harm that such offences can cause to a victim. This may for example be manifested in developmental milestones that a child has not met.
The guidelines also introduce a new aggravating factor of an offender blaming others for an offence. This is because such cases will frequently involve one parent or carer/guardian seeking to blame the other for what happened in order to avoid prosecution.
Another factor that has been added that indicates high culpability is where the “offender [has] professional responsibility for the victim” to indicate that culpability is higher in those rare cases where, for example a teacher or sports coach abuses one of the children in their care.
The guidelines also contain, for the first time, additional guidance for the court in considering whether to impose custody in cases where the offender has parental responsibility and is sole or primary carer for the victim and other children.
In these cases, the court is reminded to consider the impact which a custodial sentence for the offender would have on the victim and whether this is proportionate to the seriousness of the offence. This will be particularly relevant in lower culpability cases where the offender has otherwise been a loving and capable parent or carer.
Cruelty to a child
The offence of cruelty to a child is broad in its form and severity. Cases may be sentenced in the magistrates’ courts or Crown Court and involve ill-treatment and assault, neglect, abandonment, and failure to protect a child.
In the vast majority of cases the offender is usually the parent or guardian of the victim but it could apply to others entrusted with the care of a child. Many of these offences are at the lower end of severity, including low levels of neglect and cases where there is a risk of harm but no harm actually comes to the child.
The new guideline sets out proportionate sentencing levels to cover the wide range of situations that the courts deal with. One offence could involve someone who is an otherwise good parent putting a child at risk through a one-off lapse of care, while another could involve a parent guilty of a campaign of cruelty involving serious violence and sadistic behaviour that leads to a child suffering serious physical or psychological harm.
Causing or allowing a child to die or suffer serious physical harm
The main purpose of the legislation for this offence is that it can be prosecuted in instances where a child has died or suffered serious physical harm as a result of an unlawful act, such as an assault, by a member of the household but there is not enough evidence to prove which of the defendants committed the act. They may both blame each other.
In such cases before the introduction of this legislation, neither defendant could be found guilty of murder, manslaughter or assault and so nobody would be held accountable. The guideline reflects the aims of the legislation, including for example the aggravating factor of an offender blaming others for the offence.
This offence can also be used in its own right, for example if someone in the household is charged with the murder or manslaughter of a child, another member may be convicted of causing/allowing death, if it can be proved that they foresaw, or should have foreseen, that their co-defendant would commit an unlawful act which risked serious physical harm to the child.
There are very low volumes of offenders sentenced for this offence, due to the fact that where a child has been killed, those responsible are likely to be charged with murder or manslaughter, and where the child was badly injured, a serious assault charge would normally be brought.
Failing to protect a girl from the risk of Female Genital Mutilation
This offence is committed when a parent or carer of a girl under 16 allows FGM to take place unless they can show that they were not aware of such a risk and reasonably could not have been expected to be, or that they took reasonable steps in order to protect the girl.
The issue of FGM has been of growing concern within Parliament and the public and so the Council is keen to provide a clear approach to ensure consistent and appropriate sentencing when offenders are convicted.
The guideline takes into account the psychological impact these offences can have on victims and acknowledges that by their very nature, all offences of FGM carry an inherent level of harm.
How our criminal law solicitors can help defend child cruelty offences
We will be able to give you advice as to the strength of the evidence in child cruelty offences, the availability of defences and likely sentence upon conviction. You will always be helped by seeking this advice at the earliest possible opportunity.
As a result, if you are arrested or know that the police wish to speak to you about an offence of then make sure you insist on your right to free and independent legal advice.
A postal requisition is a summons to court, telling a defendant what they have been charged with. It will also contain the date and time that you must attend a particular Magistrates’ Court.
