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If you have found this article through an internet search then it is likely that you are one of many thousands of people who have been interviewed by the police under caution and then released under investigation.

It may be that you are having to search for an explanation because several weeks, or months, or even a year have passed and you have not heard anything from the police.  You might not know or be confused about what will happen now that you have been released under investigation.

What does released under investigation mean?

If this has happened to you then it should mean that any police investigation into your alleged behaviour is still ongoing.  The police should intend to notify you of the decision as to whether or not you will be prosecuted at some point in the future.

Often the effect of being released under investigation is that suspects will find that their lives are put on hold in many ways.  It might be that the original allegation is a serious one so it is hard to get on with your life as normal.  Your studies or career might be suffering while you are released under investigation due to a lack of knowledge of what is happening.

You might not know when property such as telephones or computers are to be returned.  Potential witnesses might be waiting to see if they will be spoken to by the police.

Until you hear from the police it will be hard to put the matter to the back of your mind and impossible to forget about it, even where you know that you were not in the wrong.

Why am I not given a fixed date?

Previously suspects in a criminal investigation were likely to be released on bail to return to the police station so that a decision on charge or further interviews could take place.

Adverse publicity of cases where suspects were on bail for what could be years meant that the system was reviewed.  The system created inconvenience where people would have to return to the police station many times only to find nothing was to happen and their bail was extended.

Police bail is now only used in a limited number of cases.  The ability to keep suspects on police bail for long periods is now overseen by the courts.

Unfortunately, the change to the law on police bail has meant that it has been replaced with an equally unsatisfactory system where the police don’t even provide the milestones that bail dates would give to permit a review of the investigation.

Will the police keep you informed of developments?

For those who have been released under investigation it is unlikely to be enough to hope that the police are carrying out a thorough and effective investigation into the allegations

It is often impossible to tell whether any delay is due to the investigation or because other cases have been prioritised by the officer in your case.

Instruct a criminal law solicitor to represent your interests

Even if you were interviewed without a solicitor before you were released under investigation it is still not to late to contact us for our help.

We will keep in regular contact with the police to make sure that they are continuing to investigate your case.  We will try and help you with a timetable for when certain steps will be taken and when the investigation is likely to conclude.

This may be of particular importance where the police are having items subject to forensic testing or having computers or mobile phones analysed.  This can take a long time, particularly in complex or serious cases.

We can help negotiate the return of property to you if it is no longer relevant to the investigation.

Having us instructed at that stage will mean that where further interviews under caution are to take place we will be able to arrange them at a time convenient to you and your solicitor.

Can I change solicitors once I’ve been interviewed?

If you had the duty solicitor in your first interview then VHS Fletchers will be able to represent you in any subsequent interview under caution and that advice will remain free of charge to you under the legal aid scheme.

If, however, you had selected your own solicitor but now wish to change to VHS Fletchers then you may have to pay privately.  Contact us and we will advise you as to that aspect of the case.

What should I do now?

With any criminal investigation it is always important to instruct a criminal solicitor from the outset.  Our advice will be free of charge to you and we are entirely independent from the police.

The advantages of seeking legal advice in a police interview under caution can be found here.

Our police station solicitors and accredited representatives are on call 24 hours a day, 7 days a week from our offices across the East Midlands to provide you with advice when you most need it.

The contact details for your nearest office can be found here.

If you are arrested and do not have the time to contact us before you are taken to the police station ask the custody staff to phone VHS Fletchers.

You can also contact us by using the form below:

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Clients of Newark criminal advocate Nikki Carlisle recently enjoyed a successful week following her representation including representation of a defendant under a section 38 appointment.

Section 38 Appointment in domestic violence allegations

Nikki was appointed by the court to represent a defendant under section 38 Youth Justice and Criminal Evidence Act 1999.  This procedure protects vulnerable witnesses from questioning by those said to have perpetrated offences against them.

In this case the person represented by Nikki faced allegations of common assault, criminal damage and resisting arrest.

The limitations of a section 38 appointment mean that Nikki was only appointed in relation to the allegations of common assault and criminal damage.  These were the matters that the vulnerable witness would be giving evidence about.

Although Nikki owed a duty to the defendant he was not her client in the usual understanding of that term.  As a result, Nikki’s involvement was limited.

• she could only ask questions of the single witness in relation to the two charges
• she was unable to question the officer about the remaining charge
• she did not assist the defendant in giving his evidence in chief through questionin
• the defendant did not have the benefit of her giving a closing address to the Magistrates.

Nikki was able to question the witness in some detail, exposing inconsistencies and parts of her account that simply didn’t make sense.  No doubt in great part due to this questioning under the section 38 appointment he was found not guilty of both of these allegations.

The defendant was convicted of the allegation of resisting his arrest.  It is impossible to speculate whether Nikki’s representation could have made a difference to that verdict as well.

This defendant had been given the opportunity to come into the office to provide instruction so that an application for legal aid could have been submitted.  He did not keep that appointment.  As a result our involvement was limited.

Had he applied for and been granted Magistrates’ Court legal aid then Nikki’s representation would have been free of charge to him and she could have undertaken all of the work in court set out above, as well as any other preparation needed by the case.

Acquittal following trial for domestic violence allegations

Later in the week, Nikki then represented a client under the Magistrates’ Court legal aid scheme.  He faced two allegations of assault and one of theft, all within a domestic setting.

Again, Nikki’s questioning exposed important inconsistencies in the accounts that she had given to the police and the court.  The assaults that she described did not agree with the injuries that she said she had received.

The witness also changed her account between making her first complaint and giving evidence in court and no satisfactory explanation was forthcoming.

The case was further complicated by comments that Nikki’s client made while giving evidence that the prosecution argued amounting to an attack on the character of the witness.  As a result an application was made to have previous convictions of our client taken into account when a decision was made as to his guilt.  Nikki successfully argued that this evidence should not be admitted.

Following Nikki’s closing speech to the court her client was found not guilty of all three allegations.

Shop theft allegations discontinued prior to trial

Nikki was due to represent another client at trial under the legal aid scheme.  It involved two allegations of shop-lifting.  The issue in the case was whether there had been a lawful identification of her client as the person responsible for the offending.

She had raised in  writing the alleged breaches of the code of conduct relating to identification.  She repeated the requests for disclosure that would demonstrate that the identification was lawful or a concession that it was not.

In the event, she received a notice of discontinuance.  If would perhaps be fair to infer that the the identification procedure had not been conducted in accordance with the law.

Of course, without the benefit of Nikki’s advice and representation the prosecution might not have been put on notice that there were irregularities with the identification procedure.  The outcome for her client might have been very different.

Contact one of our criminal law specialists

If you are arrested or know that the police wish to speak to you about a criminal 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.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

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The crime of criminal damage is made out if a person intentionally or recklessly damages property. Most commonly it is damage to cars and windows, very often as an act of revenge.

The damage does not need to be permanent. There have been cases where graffiti, the use of water-soluble paints on a pavement and squashing a policeman’s helmet have all been held to be criminal damage, as has flooding a police cell.

If action, expense or inconvenience is involved in putting the matter right then damage will have been caused, as would be the case if you created ‘crop circles’ in a wheat field.

The court will consider all of the circumstances.  Whether something is damaged is a matter of fact or degree that may have to be decided by the court if the case goes to trial.

 

What if it is my property?

 You cannot unlawfully damage your own property, but it can still be an offence to damage jointly owned property. So, a person who smashes up a family home in a fit of rage would very often be guilty of the offence of criminal damage.

What if it was an accident?

There is sometimes a fine line between accident and recklessness. To prove recklessness, the court should be sure that you were aware of a risk that property would be damaged, and, in the circumstances, it was unreasonable for you to take that risk.

The offence can be committed by being reckless or intending to cause the damage. Intent is simply that you committed the damage on purpose (although in legal terms it is slightly more complex than this).

Is there a defence to criminal damage?

 Whether the offence is committed depends on damage being caused without “lawful excuse”. You would have lawful excuse if you believed you had consent to cause the damage or would have had consent or that you were protecting your own property or that belonging to someone else. Your actions would have to be reasonable in all the circumstances. It is your belief that is important so if it is honestly held it may not matter if the belief is not justified.

Causing damage simply because you are drunk will afford neither a defence nor mitigation.

 Where will I be dealt with?

 This offence will be dealt with in the magistrates’ court where the value involved does not exceed £5,000. When there is more than one offence of damage the total of the damages will be used to calculate whether the offence is £5,000 or less. The court determines the value of the damage in deciding whether they are to deal with the case.

Where damage is caused by fire (arson) different considerations apply.

Is there a time limit on prosecution?

 Even though certain offences can only be dealt with in the magistrates’ court the six-month time period for prosecution does not apply.

What sentence will I get?

 Minor damage such as breaking a small window is likely to result in a conditional discharge or fine. Significant damage up to £5,000 caused as part of a spree can lead to a community order or custody of up to three months. The higher the value, the more likely imprisonment will be imposed, the maximum sentence at the crown court is ten years.

In appropriate cases we will work hard to have your case diverted away from the criminal justice system.  An early apology and offer of compensation can sometimes be enough to avoid a criminal case.

How can we help?

If you are arrested or know that the police wish to speak to you about an offence of criminal damage 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.

In a case of criminal damage this might include diverting your case from the court process entirely.

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.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

All posts by Andrew Wesley/h3>

A police interview under caution will be an opportunity for a suspect to provide the police with their defence to criminal charges.  There may be circumstances in which a suspect with a defence nevertheless exercises their right to silence.  You can read more about that option here.

Using a prepared statement instead of answering questions

An alternative to a suspect answering police questions will be to use a prepared statement.  If a suspect later faces trial for an allegation, Magistrates or a Crown Court jury might be asked to draw conclusions about the truthfulness of any account given.  This could happen where an accused relies on a fact in their defence at court that it was reasonable for them to mention in interview.

The benefit of seeking our free and independent legal advice in police interview is that we will advise you of the approach to take that is in your best interests having considered all of the circumstances.

Our advice is subject to legal privilege and therefore private

Any advice that we give to you and your instructions that allow us to give that advice are confidential and subject to legal privilege.  We can only disclose your instructions and our legal advice with your permission.

A written statement reduces the risk of adverse inferences

Following advice, a decision might be made that it is more appropriate for you to set out your defence in a written statement that can be read out by your legal adviser at the start of the interview.  Thereafter you would be advised not to answer any of the questions put to you.

Any fact mentioned in a prepared statement will be something mentioned in when questioned by the police.  As a result it may go some way to preventing any adverse inferences being drawn by the court at trial following a ‘no comment’ interview.  The effectiveness of the prepared statement is likely to depend upon how forthcoming you are in providing full instructions.

A prepared statement allows a suspect to control easily the amount of information that they disclose to the police.  It means that the police have less information to question a suspect on than if they answered questions.  Once questions are answered, it is far easier for an interviewing officer to probe for any problems or inconsistencies or to elicit further information.

When might we advise that you use a prepared statement?

Our solicitors and accredited representatives recognise that each case is different and our advice will depend upon the evidence the police hold and your instructions.

Such a statement might be appropriate where it is clear to your legal adviser that the police are not providing full disclosure of the evidence that they hold and may surprise a suspect during interview with new information.

Where in normal circumstances we might advise a client to answer questions in full, it may be that there are particular reasons for you to submit a prepared statement instead.  These might include:

• Where a suspect is vulnerable and might not do themselves justice in interview were they to answer questions
• A suspect may be unable to withstand the pressure created by the interview process
• Circumstances in which a suspect is reluctant to speak candidly with their adviser
• An interview may provide additional information to the investigating officer that will not assist the suspect
• It may be appropriate to deny certain facts and avoid admitting others, particularly where this may disclose further offending

When should I hand in my prepared statement?

 You will receive advice as to when it is appropriate to make your prepared statement.  It might be after initial interviews in order that we know the case against you.  It might be at the end of all of the interviews.  There is a final opportunity to do so on charge.

In some cases the contents of the statement will not be disclosed to the police in any interview, but will dated, timed and signed by you and only produced if there is sufficient evidence to take your case to court.

Who drafts the statement?

Your solicitor or accredited police station representative will draft the statement for you in accordance with your instructions.  It will be designed to mention all of the necessary information to reduce the risk of an adverse inference. This is important as it is likely to be used at trial in one form or another if you are charged.

Always seek our free and independent advice in police interview

All the advice that we give you will be with your best interests as our sole consideration.  The only reason that we are there is to try and ensure the best possible outcome for you.

We have the experience to consider not only the immediate situation of your police detention but also what may happen should your case come to court.

We aim to make what might be difficult decisions easier for you and relieve some of the pressure that you will feel as a result of being interviewed.

As a result you can see that it is vital that you ask for our free and independent advice in police interview.  A number of other benefits to having legal advice can be found here.

We provide nationwide advice and assistance in the police station from our offices across the East Midlands.  You can find your nearest office here.  Our expert representation is available 24 hours a day, 7 days a week.

Alternatively you can use the contact form below:

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The Sentencing Council, responsible for setting sentencing guidelines in England and Wales, has today issued a new sentencing guidelines for manslaughter offences.

Which offences are covered by the new sentencing guidelines for manslaughter offences?

The guideline covers:

• Unlawful act manslaughter – a common law offence
• Gross negligence manslaughter – a common law offence
• Manslaughter by reason of loss of control – a statutory partial defence to murder (sections 54 and 55 of the Coroners and Justice Act 2009)
• Manslaughter by reason of diminished responsibility – a statutory partial defence to murder (section 2 of the Homicide Act 1957)

The offence of corporate manslaughter is covered by the Council’s health and safety sentencing guidelines.

When does the guideline take effect?

The sentencing guideline for manslaughter offences applies to all offenders sentenced on or after 1 November 2018.  This means that if you are charged before the guideline comes in to force, you may still fall to be sentenced in accordance with it if you plead guilty or are convicted.

What are the different types of manslaughter?

Unlawful Act manslaughter

This is the most commonly prosecuted form of manslaughter and includes deaths that result from assaults where there was no intention to kill or cause very serious harm.  The circumstances can vary greatly.

For example, it could involve a situation where two friends briefly argue and one pushes the other causing him to fall and hit his head with fatal results.

Alternatively, it could involve someone going out looking for a fight and attacking someone forcefully but not intending to kill.

It could also include unintended deaths that result from other crimes, such as arson or robbery.

105 offenders were sentenced for this offence in 2016.

Gross negligence manslaughter

This occurs when the offender is in breach of a duty of care towards the victim which causes the death of the victim and amounts to a criminal act or omission.

The circumstances can again vary greatly. In a domestic setting it could include parents or carers who fail to protect a child from an obvious danger. In a work setting, it could cover employers who completely disregard the safety of employees.

Just 10 offenders were sentenced for this offence in 2016.

Manslaughter by reason of loss of control

This arises if the actions of an offender, who would otherwise be guilty of murder, resulted from a loss of self control.  An example might be where there was a fear of serious violence.

12 offenders were sentenced for this offence in 2016.

Manslaughter by reason of diminished responsibility

Someone guilty of this offence would have been suffering from a recognised mental condition that affected their responsibility at the time of the offence, without which they would have been convicted of murder.

26 offenders were sentenced for this offence in 2016.

Why has this guideline been issued?

The new sentencing guidelines for manslaughter offences will  ensure there is comprehensive guidance where previously such guidance was very limited.

Until now, there has been a guideline only for corporate manslaughter, which comes under the Council’s health and safety offences guideline.  The only other guideline  was issued by the Council’s predecessor body for manslaughter by reason of provocation.  This is now out of date following legislative changes to the partial defences to murder.

The full guideline can be found here:

Manslaughter Definitive Guideline

Will sentence length increase?

The Sentencing Council predicts only a minimal impact, suggesting that only around ten extra prison places will be needed per year as a result of the guideline.  It cautions, however, that ‘it is difficult to ascertain how sentence levels may change under the new guideline.’

Experience tells us that there is a certain degree of sentence length ‘creep’ following the implementation of new guidelines. Our advocates are trained in the use of all sentencing guidelines and equipped to ensure that judges apply them correctly.

Contact a criminal law specialist

As the new sentencing guidelines for manslaughter offences show, manslaughter will always be treated seriously by the courts.  The issues that arise in the defence of such cases will be complex.

As a result, if you are arrested or know that the police wish to speak to you about an offence of manslaughter 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.  You can find your most convenient office here.   Alternatively you can contact us using the form below.