How many times have you said something like ‘I’m going to kill you’? Most of the time this will simply be something said in the heat of the moment rather than genuine threats to kill.
If, however, you make such a threat and intend that another would fear it would be carried out then you will be committing an offence of making threats to kill.
The offence is under section 16 of the Offences Against the Person Act 1861. Even though the legislation is very old it is still a commonly used charge. The key part of the offence is that a person intend another to fear that the threat would be carried out.
Is there a defence to threats to kill?
If you make the threat in self-defence or in the prevention of crime you may have a defence of lawful excuse. Whether any threat made was reasonable in the circumstances will be a matter for the magistrates or jury.
Equally, a comment made in temper or jest, with no intent to make anyone fear it would be carried out, would not be an offence.
Evidence of previous history between the parties is admissible as tending to prove that the defendant intended his words to be taken seriously (Williams (C.I.), 84 Cr.App.R. 299, CA.)
What if the threats to kill are made to someone else?
You do not have to make the threat directly to the person, it may be through a third party.
For example, a man in prison made threats to a prison officer that he was going to kill his ex-girlfriend, he was convicted and received five years imprisonment. The threats were taken especially seriously as he had a previous conviction for the manslaughter of his wife.
What sentence can I expect?
The offence can encompass a wide range of offending so in sentencing the court will look at a variety of factors. These can include the following examples:
was there a weapon?
was it a threat in the heat of the moment?
the impact on the victim
repeated threats or a single calculated threat?
An example is a case involving threats to kill made to an arresting officer. The offender knew detail about the officer’s home life which added weight to the threats. As a result he was sentenced to 2 years imprisonment.
When a weapon is present when threats are being made the offence is much more serious. An offender who threatened his former partner with a sword received five years imprisonment.
Sentences imposed can range from a community order for an offence that constitutes one threat made in the heat of the moment, through to imprisonment up to a maximum of 10 years for repeated threats or the presence of a weapon.
How can we help defend in a case of threats to kill?
As you can see, making threats to kill is a serious allegations and the law relating to defences can be 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.
Denney’s client was guilty of failing to notify the details of a driver when required to do so by the police. Unfortunately he already had ten penalty points on his driving licence. As a result, the minimum of six penalty points that would be imposed for the new offence would make him liable for a disqualification for a minimum of six months under the totting up procedure.
To avoid this, Denney successfully argued before the Chesterfield Magistrates’ Court that his client would suffer exceptional hardship if he was to be disqualified. Although any disqualification is likely to lead to hardship, in this case our client would not only lose his employment as a driver but also his home. He would be unable to continue with the additional responsibilities that he had for his grandchildren.
Our client was relived that he was able to keep his driving licence although it now had sixteen penalty points upon it.
Not guilty of driving whilst disqualified
Two days later, Denney represented another client who was standing trial at Chesterfield Magistrates’ Court in relation to an allegation of driving whilst disqualified.
A police officer had intelligence suggesting that our client had been using a particular vehicle whilst disqualified and therefore without insurance. The police saw the vehicle. There was a pursuit and when the vehicle came to a halt three people ran away from the vehicle.
The officer claimed that he was sure that the driver of the vehicle was Denney’s client. This was disputed at trial.
Challenging police evidence can often be difficult. It is the case that Magistrates are often more persuaded by the evidence of an officer than by that of a defendant. Denney conducted his own research into the credibility of the officer in question. He found that the officer had appeared before the police disciplinary panel for misconduct recently. That misconduct was that he had deliberately made a wrong entry onto the Police National Computer. As a result the officer had received a warning about his conduct.
In order to have this information before the court, Denney had to make a successful bad character application. Aside from cross-examining the officer about the disciplinary finding, Denney also asked him detailed questions about the difficult circumstances of the identification.
After considering the evidence in the case the magistrates found our client not guilty of the offences.
Denied shop theft allegation
Four days after that a different client stood trial at Chesterfield Magistrates’ Court in relation to an allegation of shop theft. In this case a store manager claimed that he had witnessed a theft, identified our client from CCTV and then given chase before our client left the scene in a vehicle.
Our client had, unfortunately, chosen not to take advantage of our free and independent advice in police interview. He had, however, stated that he did not recall being involved in such an incident.
In preparation for what could be a difficult trial Denney closely examined the CCTV footage. He discovered that the offender’s face could not be seen. As a result, this cast doubt on the identification made by the store manager.
In his closing speech, Denney argued that the Magistrates needed to examine closely the circumstances in which the identification was made. Mistakes can be made in recognition of close relatives and friends can sometimes made be made.
Again, having heard Denney’s argument and considered the evidence the court found his client not guilty.
Seek our representation before Chesterfield Magistrates’ Court
Chesterfield crime solicitor Denney Lau
You can ensure that you are represented by Chesterfield crime solicitor Denney Lau by phoning 01246 387999 and making an appointment to see him. Contact him in advance of any police interview or court appearance and if he is available then he will be with you, or make arrangements for one of his experienced colleagues to attend instead.
Alternatively you can use the contact form below.
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The government has announced its intention to use new breathalysers to administer roadside breath tests. This move could see a further 6,000 convictions per year for those who drink and drive.
Roadside breath tests followed by evidential tests
At the moment, breath test procedures are in two stages. Those who test positive during roadside breath tests will be arrested and taken to a police station. This is for a further test to be administered. The second test is known as the ‘evidential test’. It is the result of this test that forms the basis of any prosecution decision.
The gap in time between the first positive roadside breath tests and the ones administered at the police station may be significant enough to ensure that a person blows a negative reading. This would be due to falling alcohol levels over time. In some cases, however, the reverse can also happen.
Although the law permits ‘back calculations’ to be undertaken, the evidence base is such that they are seldom used by the prosecution in this scenario. As a result it has been argued that some drink drivers go free.
The legislation providing a procedure for definitive evidential roadside breath tests is already in place. In June 2018 the government has announced a competition aimed at device manufacturers, with the aim of ensuring that suitable devices are approved and in use for roadside breath tests by 2020.
Around 460 000 breath tests are conducted each year. Approximately 59 000 people providing a positive reading.
Approximately 6 000 people provide a positive reading at the roadside but are later found to be under the limit when tested at the police station. This change will see those people prosecuted.
In many instances these will be people who have ‘gambled’ on a quick lunchtime drink or have not allowed quite enough time to sober up from the night before.
The changes will also reduce the scope for so-called ‘loophole defences’. These have been made popular due to the complexities of the police station procedure. It is expected that decades of case law will become redundant once the new devices are being used.
Experience does, however, tell us that legal challenges will continue to be developed even when other avenues of law are closed to suspects and defendants.
The penalties for drink driving are severe. There are minimum periods of disqualification. These can be combined with high financial penalties and punishing insurance premiums for many years to come. Prison sentences will be imposed in the most extreme cases. As a result, many offenders face the loss of employment.
How can we assist?
Our motoring solicitors are experts in all aspects of drink and drug driving law. This is one of the most complex areas of criminal law. Early advice should be sought to ensure that you achieve the best outcome in your case.
In some case, such as this one, our clients accept that they are guilty but wish to mitigate the usual effect of a conviction, such as a disqualification.
We have expert road traffic lawyers at our six offices across the East Midlands. Find your nearest office here. Alternatively you can use the contact form below.
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Although some breaches of environmental law amount to criminal offences, not all do.
There are a wide range of potential penalties that are quite different to those usually faced for standard criminal offences. Even where a criminal offence has been committed, court action and all that it entails can very often be avoided.
It is therefore vital that you take legal advice at the outset of any Environment Agency investigation, as we are best placed to ensure you exit with the least possible penalty in the event that you have committed any wrong.
Prosecution is said to be a last resort, and any enforcement action has to be proportionate and appropriate. This article is intended as a guide to the penalties that are available.
Criminal and offence specific responses to breaches of environmental law
A Warning – this will set out the offence believed to have been committed, the corrective action expected to be taken within a set time and what will happen if action is not taken.
A Formal caution – can be imposed where a prosecution could be commenced, the offender admits the offence and consents to be cautioned.
Prosecution fixed penalty – can be imposed for certain offences. If it is not paid a prosecution can follow.
Prosecution – the Agency must be sure there is a realistic prospect of conviction, and it is in the public interest to prosecute.
Civil sanctions
When the Agency decides to impose a civil sanction (except a stop notice) they will:
serve a notice of intent
provide an opportunity to make written representations within 28 days
consider any representations
make a final decision and notify you with concise reasons for the decision.
A Compliance notice – this requires the offender to come back into compliance and can also apply where advice has been given but not followed.
A Restoration notice – a formal notice requiring the offender to put right any damage caused by an offence. Steps to take will be set out in the notice to rectify the situation within a set time.
A Fixed monetary penalty – can be issued where advice has been given and not followed or for minor offences.
Variable monetary penalty – issued for more serious offences where it is not in the public interest to prosecute. This penalty may also be issued in conjunction with a compliance or restoration notice.
Stop notice – requiring an activity to be stopped immediately, it will set out action to be taken and will remain in force until the action is taken.
Enforcement undertaking – a voluntary offer by the offender to put right the effects of the offending behaviour. If accepted the offer becomes a binding agreement. If the offender complies then a prosecution cannot be taken.
How we can help with breaches of environmental law
Nottingham crime and regulatory solicitor Martin Hadley
Not all penalties are available for all breaches or offences, and representations can be made to the Environment Agency about the most suitable penalty. We can assist you with those representations.
Please contact crime and regulatory solicitor Martin Hadley on 0115 9599550 at our Nottingham officer or use the contact form below.
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The Disclosure and Barring Service (‘the DBS’) is a government organisation responsible for the reporting of convictions and other information to employers and other relevant organisations.
What data is held by the disclosure and barring service?
The Disclosure and Barring service holds three classes of information:
Class 1
Spent and unspent convictions, cautions, reprimands and final warnings.
Class 2
The class 1 information plus police intelligence information. For example, this might include where a person has been arrested for a crime.
Class 3
A list of people on ‘barred lists’ who are prevented from working with children or vulnerable adults
What can an employer require?
This will depend on the type of the organisation. As a result, if a person applied for a job at a local supermarket, only the class 1 information would be available. This is because the job is not sensitive in any way. In such a situation the certificate available would merely show whether there were any unspent convictions that ought to be disclosed. It would be the prospective employee who would request the certificate from the Disclosure and Barring service. This is called a ‘basic check’.
For many occupations an enhanced certificate can be required. This could lead to the disclosure of information held that fall into classes 2 and 3.
There are obvious examples of such employers. These will include the police service or professions such as solicitors. But there is also a very wide range of organisations who employ people who may come into contact with children or adults, such as nursing or childcare.
What is on an enhanced certificate?
Unspent convictions will appear on the enhanced certificate.
However, whether spent convictions and police intelligence appear depends on the application of filtering guidelines and individual decision making within the Disclosure and Barring service. As a result, the outcome may well differ depending on the relevancy of the information to the role.
A recent Supreme Court decision in R (on the application of AR) (Appellant) v Chief Constable of Greater Manchester Police and another (Respondents) means that police forces can reveal whether individuals have been acquitted of criminal charges when issuing information for enhanced record checks. The case establishes new guidelines in balancing an individual’s right to privacy when applying for employment against the need to protect public safety.
An enhanced criminal records certificate will include information on the basis simply of the chief constable’s opinion as to whether it “ought to be included in the certificate”.
Part of the reasoning given was that “In principle, even acquittal by a criminal court following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”
Is it fair that a spent conviction, an allegation or an arrest not resulting in prosecution will be disclosed?
This is one of the most frequent questions that we receive. It is not always easy to answer. This is in part because we are awaiting some important judgments and a decision from the government in relation to some aspects of the Disclosure and Barring service.
The starting point is that it is likely that DBS will continue to retain all conviction and intelligence information. This follows a key recommendation following the Soham murders.
The issue for most people is not so much the storing of the information, but the disclosure of irrelevant information.
There is a complex filtering process which will lead to the inclusion or removal of information. The rules as to when a conviction or caution will be filtered are set out in legislation. This states that a certificate must include the following:
cautions relating to an offence from a list agreed by Parliament
cautions given less than 6 years ago (where individual 18 or over at the time of caution)
cautions given less than 2 years ago (where individual under 18 at the time of caution)
convictions relating to an offence from a prescribed list
where the individual has more than one conviction offence all convictions will be included on the certificate (no conviction will be filtered)
convictions that resulted in a custodial sentence (regardless of whether served)
convictions which did not result in a custodial sentence, given less than 11 years ago (where individual 18 or over at the time of conviction)
convictions which did not result in a custodial sentence, given less than 5.5 years ago (where individual under 18 at the time of conviction)
A list of offences which will never be filtered from a criminal record check has been taken from legislation.
The list includes a range of offences which are serious, relate to sexual or violent offending or are relevant in the context of safeguarding. It would never be appropriate to filter offences on this list. Also, the legislation covers equivalent offences committed overseas.
In relation to the latest decision at the Supreme Court, the following concerns were expressed as to how employers would treat the information:
“Nor does there appear to be any guidance to employers as to how to handle such issues. Even if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt.”
Positions where filtering does not apply
There are a small number of defined positions where details of all convictions and cautions may be taken into account. These positions do not come through the DBS process. Some examples are police vetting and firearms licence applications.
If the position or occupation is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 but not subject to a disclosure by the Disclosure and Barring service then the employer is entitled to ask about, and receive information about, all spent convictions and cautions.
The employer should, however, follow existing guidance and conduct a case-by-case analysis of any spent convictions and cautions and consider how, if at all, they are relevant to the position sought.
It would be advisable for the employer to keep records of the reasons for any employment decision and in particular rejections. These reasons should include whether any spent convictions or cautions were taken into account and, if so, why.
If the employee fails to disclose any spent convictions or cautions when required by law to do so, he or she will not be protected from the consequences of this. The Rehabilitation of Offenders Act will not apply.
Is there anything I can do?
You need to understand before an application is made what is likely to be disclosed. That will enable you to act quickly if notified that disclosure is to be made. Please note, however, that the police are not obliged to notify you in advance.
It is also important to note that the filtering process does not deal effectively with police intelligence information, for example, arrest not resulting in prosecution. The police will apply ‘statutory disclosure guidance’ alongside a ‘Quality Assurance Framework’ when making a disclosure decision.
You will be able to make representations to the ‘Independent Monitor’, and in some instances, it may be possible to take court action to prevent future disclosure.
We have seen a large number of court challenges to the Disclosure and Barring service processes. The High Court ordered another significant change as recently as October 2017 (R (R) v The National Police Chief’s Council & Anor [2017] EWHC 2586 (Admin)).
How we can assist you
There is no instant answer that can be given to the often-complex scenarios that we are presented with.
The disclosure of irrelevant information can be extremely harmful, and therefore each case must be analysed with the utmost care to ensure against wrongful disclosure.
We are happy to advise, guide and make representations on your behalf, and if appropriate, advise on legal remedies in relation to the Disclosure and Barring service.
To discuss any aspect of your case please contact one of our solicitors at your nearest office. Details can be found here. Alternatively you can use the contact form below.
