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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.

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On 7 June 2018 the Sentencing Council published new guidelines for judges and magistrates.  These are to be used when offenders are being sentenced for breaching court orders.

The guidelines provide a clear approach.  This mean that the way courts deal with such offenders will be tightened up.  These are people who are breaching court orders by not complying with orders such as suspended sentence orders, community orders, restraining orders and sexual harm prevention orders.

It is the first time there have been comprehensive guidelines setting out a consistent approach for courts to use.  They will help ensure that for offenders breaching court orders those sentencing will impose appropriate penalties according to the seriousness of the breach.

What breaches of court orders are covered by the guideline?

• Breach of a Community Order
• Breach of a Suspended Sentence Order
• Breach of Post Sentence Supervision
• Failing to Surrender to Bail
• Breach of a Protective Order (restraining and non-molestation orders)
• Breach of a Criminal Behaviour Order and Anti-Social Behaviour Order
• Breach of a Sexual Harm Prevention Order and Sexual Offence Prevention Order
• Failing to Comply with Notification Requirement
• Breach of Disqualification from acting as a director
• Breach of Disqualification from keeping an animal

When does the guideline on breaching court orders come in to force?

The guideline for breaching court orders will come into effect in courts on 1 October 2018.

Is the guideline a change in approach?

Courts are required to follow guidelines and these guidelines closely reflect legislation and define more clearly appropriate court responses to breaching court orders.

For example, in relation to suspended sentence orders, legislation states that they must be activated – i.e. the offender will be sent to prison – in the event of a breach unless it would be unjust to do so.

The guideline gives clearer guidance on this consideration.  Offenders will now not get opportunities to avoid their sentence being activated. For activation to be considered to be unjust, there would need to be new and exceptional circumstances – not present at the time the order was imposed – that prevented them from complying with the order. This might involve for example the offender taking on caring for a disabled relative which greatly affects their ability to comply with an unpaid work requirement.

The guideline also covers breaching court orders imposed to prevent particular behaviour or protect individuals or groups from it.  These include Sexual Harm Prevention Orders and Restraining Orders. The guidelines prompt courts to look at an offender’s motivation and intention in committing a breach to assess the seriousness of the breach. The guidelines also instruct courts to look at any harm caused, and for the first time in a guideline, the risk of harm being caused.

Including a focus on risk of harm for such breaches helps ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public.  As a result no actual harm needs to have occurred. This could include for example a sex offender who fails to comply with notification requirements with the intention of evading detection in order to commit further offences.

Sentencing Council member Julian Goose said:

“Court orders are there to protect individuals and the wider public from particular types of offending or continuing criminal behaviour by offenders. Making sure that offenders comply with court orders is crucial in reinforcing public confidence in sentencing. Where offenders do not comply, the public have a right to expect that this is properly addressed by the courts. We are giving courts clear guidance on what action should be taken against those offenders who ignore court orders so that they are dealt with robustly and consistently.”

Will more people go to prison as a result?

The Sentencing Council conducts research to assess the impact of its guidelines on future sentencing practice. This is a difficult task and the findings are subject to many caveats.  However, the following pattern emerges:

Protective orders:

‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. There are two exceptions which may lead to higher sentences for some breaches of a restraining/non- molestation order.’

Criminal Behaviour Order:

‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. The exception is for the most serious breach cases that fall in categories A1, A2 and B1, where there has been an extension to the category ranges, and also at the bottom of the distribution where there may actually be a reduction in sentence severity.’

Breach of notification requirements:

‘A review of transcripts of cases has confirmed that current guidance is not considered adequate by sentencers to address offences falling within the top end of seriousness. The new guideline is more prescriptive and as a consequence it is possible that there may be more sentences at the top end of the guideline range.’

Suspended Sentence Orders:

‘…it has not been possible, (and it is not advisable), to calculate any informative or realistic estimate of the guideline on sentencing practice or the subsequent impact on prison or probation services.’

Breach of disqualifications:

‘…any potential impact would be minimal.’

Failing to surrender to bail:

‘The new wording and format of the guideline regarding consecutive sentences is considered to be in line with the existing guideline, and therefore is not anticipated to have an impact on prison or probation resources.’

There was insufficient data to provide an insight into the effect on sentencing for breach of Sexual Harm Prevention Orders or SOPOs.

In our experience sentencing guidelines often do lead to unintended rises in sentence length, possibly due to a lack of understanding, something our advocates are acutely aware of.

If you are breaching a court order how can we help?

 If you know that you are in breach of a court order then please contact us immediately.  The breach may be a matter investigated by the police and involving a police interview.  If so, our independent advice and representation of you in such an interview will be free of charge.

If you face court proceedings it may well be that you are entitled to free legal aid in the Magistrates’ Court or legal aid with or without a contribution in the Crown Court.

You can find the office most convenient to you here.

Alternatively you can use the contact form below.

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On 4 May 2018, Deputy Police and Crime Commissioner Kevin Gillott and Rosemary Spilsbury, Business and Performance Manager with the Derbyshire Criminal Justice Board, met with a group of Chesterfield crime solicitors who represent clients appearing before North Derbyshire Magistrates’ Court.

The meeting was informal in nature, arranged through Derby crime solicitor Nick Wright as the Derby and District Law Society representative for criminal matters.  The outcome has been shared with Legal Aid account managers and the Chair of the Derbyshire bench.

The aim of the meeting was to discuss any issues Chesterfield crime solicitors had with the processing of suspects and defendants by Derbyshire constabulary.  Some of the issues were also relevant to HMCTS and the CPS so the details were to be forwarded on.

Present were our Chesterfield crime solicitors David Gittins, Ben Strelley and Denney Lau, as well as other local practitioners.

The following matters were discussed:

Police Investigations

Police no longer appeared to be investigating both sides of a complaint during the investigation stage.  It was seldom, if ever, that they would speak with named defence witnesses.

Those interviewing suspects appeared to have a pre-conceived idea of what would be put in interview.  The series of questions were not departed from or amended dependent upon answers given by the suspect.  As a result, issues were not properly developed or interviews went on far longer than was necessary.

The need to investigate the issues raised by a suspect where relevant has been raised with the local body responsible for police training.

Bail and suspects released under investigation

The fact that bail could continue to be used did not appear to be properly considered by officers.

Instead, the overwhelming majority of suspects were simply being released under investigation (RUI).  Thereafter, there was no obvious suggestion that an investigation was being actively pursued.

Under the old bail system, Chesterfield crime solicitors at least had the opportunity to exercise some oversight in a case.  Representations could be made when suspects returned to the police station on bail, and bail milestones were set by which time there was a reasonable expectation that things might have progressed.

The police are to be encouraged to respond to emails from the defence explaining what is happening so that clients can be kept informed of progress.  The defence may be able to assist if, for example, it is discovered that a client has been subject to a postal requisition but has moved address.  The defence may be able to help save scarce police resources by making contact with a suspect if a further interview is required or with a defendant to make sure court dates are kept.

Superintendent Lewis will be contacting all police staff to ensure they are aware of the importance of updating suspects and their legal representatives.

Voluntary interviews

The number of voluntary interviews is increasing.  Unfortunately police stations lack the facilities to cope.  Voluntary interviews are not meant to take place in the cell blocks and several interview rooms are out of use.

The voluntary interview process and facilities are being reviewed. In the short term voluntary interviews will continue to take place in the cell block but longer term alternative rooms will be identified in police buildings across the force area.

Chesterfield Custody Suite

The facilities at Chesterfield custody suite are particularly poor.  Although the rooms in the cell block are also poor, they are still better than many of the rooms provided for voluntary interviews at many sites.  Although there has been some repairs and decorations at Chesterfield custody, other options may need to be considered in the long term.

Disclosure of evidence in particular cases

On practitioner cited a specific case where the alleged offender himself is vulnerable with a history of suicide attempts.  Phone records, and particularly text messages, were relevant to the case.  The case summary referred to 7,000 text messages that the police had retrieved.

The defence had requested this relevant material at the beginning of the case.  Three months later the defence was provided with a disc that could not be read without particular software and a password.  The defence had neither the software or the password.

Chesterfield crime solicitors are to be provided with the different types of format in which such information will be provided in future and where the software and other information can be obtained.

Disclosure of CCTV footage to Chesterfield crime solicitors

CCTV is not being provided to Chesterfield crime solicitors for the first hearing at the Magistrates’ Court.  It does not matter whether the case is anticipated to be a guilty or not guilty case.

There is an additional difficulty again in relation to the different formats in which it is supplied.  Some formats do not work on defence systems and again there are problems with the footage being password protected.

Again, we are to be provided with details of different formats used for different purposes and the software needed to access the CCTV footage.

Anticipated Plea

Unfortunately the police often anticipate the plea incorrectly.  This is a particular problem where a defendant has exercised their right to silence and there has been a ‘no comment’ interview.

If a case is wrongly identified as a ‘guilty’ plea then there will be no statements, exhibits or CCTV.  This generates a delay at court while this evidence is provided.  It will also mean that it is unlikely that issues raised by a suspect in interview will have been investigated.

A Criminal Justice review underway to establish how certain assumptions are made on plea, and how to improve the assessment of plea.

Respect for suspects and defendants

A plea was made that officers not refer to alleged offenders as ‘perps’ in the early summary of the case.  Rosemary has kindly fed this issue back to those responsible for training local officers and it is to be included in a Message Of  The Day to officers.

Buxton police station

There has been discussion as to whether the custody suite is to close and prisoners be processed elsewhere.  Unfortunately there is no answer, so a request was made that there is proper consultation with local defence solicitors, including Chesterfield crime solicitors, if change is to be considered.

Temporary closure of custody suites

When police close a custody suite temporarily the police have been asked that the duty solicitor covering that station be notified.  As a result of the meeting, the Chief Inspector has a request to Custody staff for this to be done.

Best evidence

It was noted that the police are filming information from the phones of witnesses or complainants rather than seizing the device upon which the messages , photographs or footage is recorded on.

This provides a problem with disclosure.  Neither the prosecution or defence are able to access the full thread of messages or the original footage so allow the full context to be shown.

Disclosure issues have been recognised nationally by both the police and the Crown Prosecution Service and there is to be increased training for both agencies. The College of Policing is producing a national training package for officers.

Reporting poor practice

The Chesterfield crime solicitors present at the meeting observed that it would be useful for defence solicitors to be able to give feedback in relation to specific issues.

If there are examples of poor work that do not need an immediate response then Rosemary passed out her email address and encouraged direct contact in order that the issues can be resolved.

Conclusion

Those present were of the view that the meeting was useful.  It was also an indicator that there could be a constructive working relationship between the police and defence practitioners in order that all parties, including suspects or defendants, will benefit from change over the long term.

It is hoped that further such meetings will be arranged for the future.

All posts by Andrew Wesley/h3>

With the ever-growing popularity of social media websites such as Facebook, Twitter and Instagram it is important to take a step back and consider your use of them. You need to make sure that you and your children not only control the personal information that is put onto social media but also your behaviour on such sites to steer clear of social media crime.

 

Control your online information

 Be aware of the potential for cyber-enabled fraud. Fraudsters can use information obtained from such sites to commit identity theft. Telling everyone about your forthcoming holiday may also be an advance invitation to a burglar.  It is surprising how much information we reveal about ourselves over a period of time.

If you have children you also need to be aware of the dangers of persons contacting them and then grooming your child.  This involves building an emotional attachment to them with a view to a meeting for the purpose of sexual abuse or exploitation.

Many online games allow for messaging between users – do you know who your child is talking to?

Control your own behaviour

 Many offences can be committed in the heat of the moment or when in drink.  They will involve the typing of a comment that cannot then be taken back.

Trolling, or sending abusive messages online, can be an offence under the Malicious Communications Act 1988 and the Communications Act 2003.  Stiff penalties can be imposed in either case.

Revenge porn, involving publishing intimate images of an ex-partner without their consent, is now a criminal offence and often results in a prison sentence.  This article deals with this type of offending in more detail.

What may seem to be banter to you may actually be offensive.  What may be intended to be seen by a few could end up being seen by thousands of social media users.

The use of a fake social networking profile or account may also be a criminal offence in certain circumstances.

What about freedom of speech and social media crime?

 Freedom of speech is not an absolute right and may be restricted where necessary and proportionate.

 Think it couldn’t happen to you?

 You might remember the Robin Hood Airport case?  In that case a young man made what he intended to be a jokey comment about blowing up the airport if he couldn’t make his flight due to adverse weather.

He found himself in court and was convicted by magistrates.  He lost his appeal to the crown court.  His conviction was finally quashed at a second High Court appeal. By then he had already lost his job as a consequence of the conviction.

 What are the consequences?

 Social media has recently been blamed for an increase in knife crime.  It is argued that it can amplify the effect of violence. Accordingly, online offences are being dealt with seriously.

Last year the Crown Prosecution Service updated its policy statements in order to take account of the increase in online abuse,.  The change is to emphasise that individuals need to appreciate they can’t go online and use their keyboard without any consequences.

At the other end of the spectrum, saying something unpopular or unpleasant is not unlawful.  People’s sensitivities do need to be balanced with free speech, and we see reported a number of cases that cause us concern.

This tide of sensitivity could result in people pleading guilty when in fact they are not.

How can we help defend social media crime?

Social media crime will involve serious allegations and the law is complex.  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.

All posts by Andrew Wesley/h3>

So called ‘Rogue landlords’ are frequently in the news for allegedly charging tenants too much money, refusing to release a deposit or being responsible for an unlawful eviction.

What is meant by ‘unlawful eviction’?

The statutory starting point is the Protection from Eviction Act 1977.

Section 1(2) states when someone is guilty of this offence of unlawful eviction:

“If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he is guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”

Elements of the offence of unlawful eviction and key players

The terms ‘eviction’ and ‘deprivation’ have been interpreted in a relatively intuitive manner by the courts, a key factor being the lack of access.

In Yuthiwattana (1984) 80 Cr App R 55 the court looked at differing levels of access deprivation and stated:

‘In our view “permanency” goes too far. For instance, if the owner of the premises unlawfully tells the occupier that he must leave the premises for some period, it may be of months or weeks, and then excludes him from the premises, or does anything else with the result that the occupier effectively has to leave the premises and find other accommodation, then it would in our view be open to a jury to convict the owner under subsection (2) on the ground that he had unlawfully deprived the occupier of his occupation. On the other hand, cases which are more properly described as “locking out” or not admitting the occupier on one or even more isolated occasions, so that in effect he continues to be allowed to occupy the premises but is then unable to enter, seem to us to fall appropriately under subsection (3)(a) or (b) , which deal with acts of harassment.’

Someone does not necessarily have to be a tenant to be a residential occupier.  It is possible to gain protection as a contractual licensee, as set out in the case of Thurrock Urban District Council v Shina (1972) 70 LGR 184.

But I had a good reason to deprive someone of their access, how do I show this?

If you are accused of unlawfully depriving someone of access to their property in the manner described above, it is for you to prove that you “believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”

This would only avail a landlord of a defence where the tenant had removed all physical signs of possession from the premises and where the landlord had good reason to believe that he would not be returning. The reason for this is that “possession” is synonymous with “occupation”, meaning something more than physical presence.

Before possession can be obtained of residential premises, in all cases other than where there has been voluntary vacation, there must be a court order. This will also be the case for tenants protected by the Rent Acts or Housing Act 1988, as well as for restricted contracts where a licence only is granted.

What are the penalties for this offence?

The offence carries a maximum punishment of two years’ imprisonment and/or an unlimited fine and can be tried in both the magistrates’ and crown courts.

How can we help

If you are concerned about allegations of unlawful eviction or other alleged offences relating to landlords and tenants, then please contact crime and regulatory solicitor Martin Hadley on 0115 9599550 at our Nottingham office.  Alternatively you can use the contact form below.

Although we won’t be the firm that will have drafted any letting agreement that you have, we are a firm that specialises in criminal defence and will therefore ensure that any allegations arising from any tenancy will be strongly defended on you behalf.  This will include advice and representation in any interview under caution, whether with the local authority or the police, and court representation.