All posts by Andrew Wesley/h3>

Extradition is the formal process where one country asks another to return a person to stand trial or to serve a sentence. Under multilateral conventions and bilateral extradition treaties, the UK has extradition relations with over 100 territories around the world.

What Is the Process?

The requesting State contacts the UK authorities and makes an extradition request. This may result in a warrant being issued against you, and court proceedings commenced.

It might be the case that you fear an extradition request will be made in the future – if so, you should contact us without delay so that we can advise on the options available.

Save in very exceptional circumstances your case will be heard before a District Judge sitting at Westminster Magistrates’ Court in London.

Once formalities are dealt with, the court will consider whether the tests for extradition are met. In some cases, the final decision will rest with the Home Secretary.

In some instances, a case can be disposed of very quickly, in others, it will involve a contested hearing.

The exact process will depend on which extradition regime is being applied, as it varies between requesting States.

Do I Need a Solicitor?

Yes, is the simple answer. Extradition Law is incredibly complex, and there are no circumstances where it is appropriate to try and navigate your way through this legal maze.

A duty solicitor will be available at Court to assist you, but even at that stage, you can insist that we are contacted to help – the earlier we are instructed in the proceedings, the better equipped we will be to assist you.

In some cases, it will be appropriate to use specially trained counsel (barristers) who specialise in extradition law.

Experienced extradition lawyers can advise you on the processes and how an extradition request might be opposed.

Bars to Extradition

• rule against double jeopardy
• the absence of a prosecution decision (whether the prosecution case against the accused is sufficiently advanced)
• extraneous considerations (whether the request for extradition is improperly motivated)
• passage of time
• the requested person’s age
• speciality (the requested person must only be dealt with in the requested state for the offences for which they have been extradited)
• onward extradition (where the requested person has previously been extradited to the UK from a third county, and consent for onward extradition from that country is required but has not been forthcoming)
• forum (whether it would be more appropriate for the requested person to be prosecuted in the UK instead)

The judge must also decide if extradition would be disproportionate or would be incompatible with the requested person’s human rights (for example the right to family life is a person has been settled in this Country for some time). If the judge decides it would be both proportionate and compatible, extradition must be ordered.

Note that the process is different when the final extradition decision is to be made by the Home Secretary.

It is vital that all available evidence is presented during the hearing, and this may involve testimony from experts both in this Country and from abroad.

In a significant number of cases, further avenues of appeal are available to the High Court, and the Supreme Court.

Is Funding Available?

Legal aid may be available depending on your financial circumstances. If you are not eligible for legal aid, then we will be able to offer a privately funded package.

Leave Nothing To Chance

The prospect of being returned to another country to face legal proceedings is daunting; it is, therefore, essential that you seek out expert assistance at an early stage.

If you are unable to locate a specialist solicitor then please contact us and we will be able to point you in the right direction.

All posts by Andrew Wesley/h3>

We are all aware that we live in a surveillance society. CCTV cameras can record our movements around large towns and cities, and many homes now have them installed for protection.

Automatic Number Plate Recognition cameras take a snapshot of car number plates and can not only monitor average speed for road traffic enforcement purposes, but also track the movement of a vehicle over hundreds of miles in most instances.

Finally, most people are aware that the location where a mobile telephone call was made can be pinpointed to within a few hundred metres.

But who knew that an App, installed on all Apple phones, and similar Apps on Android devices, could hold the key to a murder case?  One defendant in Germany, Hussein Khavari, found this out to his cost when he faced trial for the rape and murder of a 19-year-old student.

While investigators were able to piece together part of the defendant’s movements, his location at critical times was unknown.  It was at this point investigators turned their attention to his phone which had been seized as evidence upon arrest.

Police examination of mobile phone data

The defendant had refused to provide the police with the PIN to unlock the phone.  Despite this, specialists were able to hack into the phone and examine the mobile phone data.

The data from the Health App was examined.  It could be seen that at certain moments the data demonstrated a significant increase in physical activity.  This mobile phone data correlated with important parts of the prosecution case within the timeline, namely dragging a body down a river embankment and then climbing back up.

This evidence was used to dispute the defendant’s account of the killing which he stated was by accident, had happened at a different location, and was not premeditated.

The use of such seemingly private mobile phone data is proving controversial.  This is particularly true where there is a friction between the right to privacy and the legitimate investigation of crimes.

Difficulties for investigators

Strong encryption technology is also reported to be making life very difficult for investigators.  Home Secretaries has spoken many times of the need for new legislation.

This story also reminds us that encryption may only as good as the password behind it.  A 4-digit code to protect a phone or other device can be cracked within minutes by a data specialist.  A ten-digit random code would probably only be cracked after many years of trying, if at all.

In the UK police can, in some circumstances, request that a suspect hand over their PIN and passwords.  Failure to do so can lead to prosecution for a criminal offence under section 53 Regulation of Investigatory Powers Act 200.  This offence carries a prison sentence of up to 5 years.

Contact a criminal law specialist

The issue of privacy and its place in criminal justice is a new and evolving topic, as is the requirement to hand over PINs and passwords.

Before choosing to reveal your data secrets or making a decison to refuse it will be critical that you seek specialist independent advice as soon as possible,

You are likely to be asked to make this decision in police interview.  Our advice will be free of charge to you in those circumstances so make sure you take advantage of it.

You can find your nearest office here.

Alternatively you can use the contact form below.

All posts by Andrew Wesley/h3>

It would be thought that in relation to sexual offences and the issue of consent the issue should be straight forward – yes or no?

As always, life and the law are more complicated than that.  The issue of consent is, unfortunately, not so simple.

What is consent?

 A person consents if she or he agrees by choice and has the freedom and capacity to make that choice.

Can a drunk person give consent?

Yes, drunken consent is still consent.  However, this is where problems can arise. If a person loses their capacity to choose through drink then he or she is not consenting.

Where a person is consenting is frequently the issue in many rape cases.  As a result it is often one word against another.

The Courts have given the following guidance as to the issues to focus upon:

1. Did sexual intercourse take place?
2. Did the complainant consent to sexual intercourse?
3. Did the complainant have the freedom and capacity to consent?
4. Did the defendant reasonably believe that the complainant was consenting? This consideration will not apply in all cases.

Who decides?

 At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.

How do you prove consent?

In the absence of something in writing, and even then, there could be doubts  A jury will have to decide the issue having heard all of the evidence.

In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting.  There must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.

The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may no longer provide a defence.

There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.

How can we help?

This article is a brief analysis of potential issues, as you can see this is an area that would require careful assessment and expert advice.

The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other.

It is our job to present the strongest case possible.  You can read more about how we will prepare your case fro trial here.

To ensure that your defence is properly advanced from the start, you will want to take advantage of our free and independent legal advice in the police station.  The advice is free to you no matter what your income.  You can read about the advantages of early advice here.

Sexual offences are likely to be heard before the Crown Court.  We will always advise you as to your entitlement to legal aid to ensure affordable representation at trial.  You can read more about Crown Court legal aid here.

We provide nationwide representation from our offices across the East Midlands.  You can find your nearest office here.  Alternatively you can use the contact form below.

All posts by Andrew Wesley/h3>

What are offences taken into consideration or ‘TICs’?

These are offences taken into consideration at the time of sentencing.  These ‘TICs’ are not offences that are charged.

When will a person be asked about them?

 Where someone has pleaded guilty to an offence or offences, or is expected to do so, or are due to be sentenced after trial, a person can admit other matters so that they can be offences taken into consideration at that sentencing hearing.

As well as a person volunteering offences, the police may also approach them to ask if they want to accept any TICs.  It is crucial that free and independent legal advice is obtained at this stage as there are consequences and risks to having offences taken into consideration on sentence.

What happens if I want to admit TICs?

 You will be spoken to under caution.  If you do admit other offences and the police and prosecution agree, a schedule of the offences will be prepared and placed before the court.

It is then for the court to decide whether or not to take them into account when you are sentenced.

The positive side of such a process is that the court will consider the fact that you have assisted the police and shown a genuine desire to “wipe the slate clean”.  This will support any suggestion of genuine remorse for any offending.  More can be found about such mitigation here.

Additionally, the police will no longer be searching for the person responsible for these offences so there will be no risk of future arrests and sentence.

Offences taken into consideration will make a difference to your sentence.  Any sentence will be longer as a result of the TICs,  Any increase, however, may not be as much as if you were sentenced separately for those offences.

The negative consequences of TICs

On the negative side, the acceptance of offences taken into consideration may result in a greatly increased sentence.  They will be treated as an aggravating feature of your offending.  This will be especially true if there is a large number of TICs.

The total sentence imposed has to reflect all of the offending behaviour.

A defendant can also be ordered to pay compensation in relation to TICs.

Finally, it may be that the offences might never have been linked to any suspect.  As a result, a defendant may be admitting more than could ever be proved.  As a result there will be a trade off between peace of mind as against looking over your shoulder wondering whether your past will catch up with you.

Wiping the slate clean

If you wish to wipe the slate clean it is important to ensure that all outstanding offences are admitted, otherwise you may not receive any discount if a future prosecution is brought.

In the recent case of Murray [2018] EWCA Crim 1252 the court observed (citing an earlier case of McLean [2017] EWCA Crim 170):

“It seems to us however that this appellant must have made a conscious choice not to disclose the July 2014 matter in the hope that it would go undetected. In those circumstances he cannot now claim to be sentenced as if both matters should have been dealt with together in January 2015. To permit that to happen at this stage would be unjust to the public interest in giving the appellant an undeserved, uncovenanted bonus. This case therefore is a salutary illustration of the benefits which can accrue to offenders from making voluntary admissions of additional offending and the risks that they run if they choose not to do so.”

What sort of offences can be TIC’d?

 Similar offending is likely to be accepted as a TIC. An offence is unlikely to be accepted as a TIC if –

• it is an admission to an offence more serious than the one you have pleaded guilty to;
• it is an offence that would attract disqualification or penalty points on conviction;
• if it is an offence committed in breach of an earlier sentence;
• where it is an offence completely dissimilar to the one charged; or
• where it is a specified offence when the charged offence is not.

If further offences are admitted will they definitely be offences taken into consideration?

 Not necessarily.

Admissions in the circumstances above may lead to further criminal charges being brought against a defendant.  This is why it is important to seek free and independent legal advice.

How can we help in these circumstances?

Any advice as to whether to accept TICs or not is likely to be dependent on both your personal circumstances and the offences involved.

If we are already representing you then we will be able to take your instructions and provide you with advice on the likely effect of admitting further offences to be taken into consideration.

Where we do not currently act for you and you want our expert advice then please contact your nearest office.  Our independent legal advice in police interview will always be free of charge to you under the criminal legal aid scheme.

All posts by Andrew Wesley/h3>

Laws that criminalise unlawful violence date back to 1861 and are used every day in criminal courts to support prosecutions.  Do they criminalise parental chastisement?

Despite what might appear to be an obvious legal position, the question is often asked as to whether, despite those laws, it is permissible to ‘smack’ a child.

The simple answer is that it is lawful to chastise a child by smacking, although the extent of that provision needs explaining in an attempt to make the legal position on parental chastisement clearer.

Perhaps surprising to many is the fact that the UK is only one of two places in the European Union that permits this state of affairs.  The other country is the Czech Republic.

Earlier this year the devolved government in Wales launched a consultation, with proposals to outlaw all smacking of children.  The consultation closed on 2 April 2018 and a response is awaited.

The minister for children and social care said:

“Our knowledge of what children need to grow and thrive has developed considerably over the last 20 years. We now know that physical punishment can have negative long-term impacts on a child’s life chances and we also know it is an ineffective punishment.

While physically punishing children was accepted as normal practice in previous generations, we know that it is increasingly being seen as less acceptable and parents feel less comfortable.

We want parents in Wales to be confident in managing their children’s behaviour without feeling they must resort to physical punishment. If there is any potential risk of harm to a child, then it is our obligation as a government to take action. Legislation was introduced many years ago to stop physical punishment in schools and childcare settings – now is the time to ensure it is no longer acceptable anywhere.”

The move in Wales follows similar developments in Scotland last October about parental chastisement, which resulted in the children’s commissioners of Scotland, England, Wales and Northern Ireland calling for a ban on smacking children.

Attitudes to parenting practices have also changed. While physically punishing children was accepted as normal practice in previous generations, research shows parents today are increasingly using positive approaches which are proven to be more effective, while feeling less comfortable about using physical punishment.  In 1998, for example, 88% of British adults agreed that “it is sometimes necessary to smack a naughty child” while in 2015 only 24% of parents in Wales supported this statement.

Despite this shift in attitude, at the moment there are no plans to change the law as it applies in England.

What does the law allow in relation to parental chastisement?

The law allows an assault on a child provided that it constitutes ‘reasonable punishment’.

Section 58 Children Act 2004 states however that this defence cannot apply to the more serious charges of violence starting with assault occasioning actual bodily harm, and those more serious.

What is ‘reasonable punishment’?

The concept of ‘reasonable punishment’ has its origins in Victorian times. The case that established the legally accepted definition was R v Hopley (1860).

In this case, a boy was beaten by a schoolmaster with the permission of the child’s father.  The beating led to the death of the child.

During the trial, the presiding judge, Chief Justice Cockburn, stated that:

“A parent or a schoolmaster, who for this purpose represents the parent and has the parental authority delegated to him, may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.”

This case established in law reasonable punishment as a defence for those parents, carers or other responsible adults – such as teachers – who were charged with the criminal offence of assault on children.

The use of corporal punishment was commonplace in schools until the 1980s.  From 1986, however, the UK Parliament increasingly restricted the use of corporal punishment, prohibiting it in all state maintained schools in 1987 and in independent schools in 1999. Its use was ended in children’s homes in 2001, Local Authority foster care in 2002 and in childcare provision in 2007.

The question of whether the punishment is ‘moderate and reasonable’ will be for a court to decide on the facts of any individual case.

It is fair to say, however, that any punishment that results in more than transient or trifling injury (leaves a mark or bruise for example), is likely to fall outside of this defence. It is therefore important than parents find other mechanisms to deal with children who might at times be very challenging.

How we can assist in allegations of unlawful parental chastisement

Such allegations will always be treated seriously and the law is complicated.  As a result, if you are arrested or know that the police wish to speak to you about an 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.