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Our clients will turn their mind to what punishment they might receive if they plead guilty to, or are convicted of, a criminal offence.  In most cases the thought is whether it might be a prison sentence, a community penalty, or a hefty fine and perhaps not a directors disqualification.

While the substantive penalty is, of course, important, on occasion there are other things more serious to consider. In previous articles, we have looked at issues such as confiscation, and in this article, we consider a company directors disqualification.

What do business people need to consider?

The Company Directors Disqualification Act 1986 provides that a court may make a disqualification order where a person is convicted of an offence which is concerned with the mismanagement of a company.

There are a wide number of scenarios catered for under the Act.  As a result the actual circumstances must be considered with care. In certain situations, offences committed abroad will also qualify, as set out in section 5A of the Act.

What conduct is relevant?

Both the internal and external management of the company are relevant to section 2(1) of the 1986 Act (Corbin (1984) 6 Cr App R (S) 17).  A director’s general conduct in running the affairs of the business is also relevant (Georgiou (1988) 10 Cr App R (S) 137).

The court has extensive discretion in relation to most offences:

‘This is a completely general and unfettered power given by Parliament to courts on the occasion when a person is convicted of an indictable offence of that type. Parliament has decided not to give the sentencing court any guidance as to the way in which it ought to exercise its powers of disqualification in the very many and varied circumstances in which it may come to exercise those powers” (Young (1990) 12 Cr App R (S) 262).

What is a ‘disqualification order’?

The effect of the order is to prevent a person being involved in the future affairs of [any] company:

• he shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the court, and
• he shall not act as an insolvency practitioner.

How long does the order last?

An order made by a Magistrates’ Court can be for no longer than five years.  An order made by the Crown Court must be no longer than fifteen years, although in relation to some offences there is a shorter time frame specified.

The Court of Appeal has on occasion supported the making of lengthy orders, for example, one lasting eight years in R v Singh-Mann and Others [2014] EWCA Crim 717.

Will a guilty plea make any difference as to the length of the order?

A guilty plea will not act to reduce the disqualification period.  This is because the discount for an early plea does not apply to ancillary orders (Clayton [2017] EWCA Crim 49, [2017] All ER (D) 71 (Jan)).

It is, however, inappropriate to order disqualification where the offender is conditionally discharged (Young (1990) 12 Cr App R (S) 262).

It may be inappropriate for a court to order compensation to be paid by a director who, by virtue of the making of this type of order, will be deprived of the ability to earn a living (Holmes (1992) 13 Cr App R (S) 29).

What happens if I breach the order?

Imprisonment of up to 2 years may be imposed if an order relating to a directors disqualification is breached.

How we can assist in a directors disqualification case

We are experts in all aspects of criminal law.  As a result we are well placed to advise you if the above provisions relating to a directors disqualification might be invoked in your case. If you have any concerns or simply to discuss any aspect of your case, then please contact your nearest office here.

Alternatively you can use the contact form below.

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It is common for officers at airports and other ports of entry to intercept people carrying controlled drugs in their luggage, clothing or inside their bodies on behalf of suppliers in foreign jurisdictions. The colloquial term for such a person involved in drug importation is a ‘mule’. They may have been pressured into carrying the drugs or have done so for a fee, or both.

On occasion large quantities of drugs are found.  Sometimes it is merely the leftovers from a holiday or business trip abroad.  This may have occurred at a location where drug use is more widely tolerated by law enforcement than it is in the United Kingdom.

Committing the offence of drug importation can however result in severe consequences.

 

The crime of drug importation

Drugs are brought into the jurisdiction in a number of supposedly ingenious ways.  For example, cocaine may be moved in its liquid form while disguised as something else.  Drug ‘mules’ may swallow a number of pellets containing drugs of different kinds.

Naturally, the police and associated organisations are frequently uncovering these methods as they arise.  This results in those who take the risk and are caught being charged and sent to prison for a significant term.  This will be despite initial thoughts that the police or customs officers have been outwitted.

Which laws would I break?

The underlying offence is the breaching of the prohibition on the importation and exportation of controlled drugs.  This is created by Section 3 of the Misuse of Drugs Act 1971. This prohibition is paired with the substantive offence.  This is contained in Section 170 of the Customs and Excise Management Act 1979.

The maximum penalties

The maximum penalties for the offence of drug importation will vary depending on the type of drugs in question:

• Class A, life imprisonment;
• Class B and C, 14 years’ imprisonment;

Sentencing for drug importation

Various factors will alter the sentence imposed upon someone who either pleads guilty or is found guilty of this offence. These include:

• the role played by the individual in the activity
• the amount and character of the substance in question
• their level of co-operation with the police.

The sentences here are generally heavy.  Prison almost always follows for even the smallest quantity of drug.  Sentences of between ten and twenty years, or even more, are common where the quantity is large.

There are however a large number of factors that might reduce the seriousness of the offence or provide valuable mitigation.  It is essential that you choose a solicitor who will properly explore these on your behalf to ensure a proper reduction in sentence.

Case studies

In Gregory [2012] EWCA Crim 649, the appellant’s sentence of imprisonment was reduced from 8 years to 6 years.  This was because the original sentence did not sufficiently reflect the appellant’s relatively minor role and the fact that he believed he was carrying cannabis rather than cocaine.

Conversely, the appellant in Burns [2009] EWCA Crim 1123 received an increased sentence upon a reference by the Attorney-General.  In this case the sentence increased from 8 years to 14 years’ imprisonment.  This was said to better reflect the fact that he had abused his professional role as a distribution supervisor by allowing cocaine importations.

There is a comprehensive sentencing guideline that judges will use in order to decide sentence.

How we can help in drug importation cases

Such offences are always serious.  Expert representation at the earliest stage is highly desirable, particularly if you may have acted under duress and have the basis of a defence in law. Sadly, many already very vulnerable people are caught up in drug importation.  It is essential that your story is told.

If you are to be spoken to about an allegation of drug importation then the first thing you must to is take advantage of our free and independent advice in any interview under caution.  We will be able to give you initial advice that might help with the direction of the case.

The benefits of such early legal advice can be found here.

If your case is to go to court then we will make sure that your best case is before a jury at trial.  Alternatively we will ensure that mitigation is obtained and properly presented on your behalf in order to make sure your sentence properly reflects your involvement.

A number of reasons why you might want to instruct VHS Fletchers over other firms can be found here.

You can find your nearest office by following this link and all of our phone numbers are answered 24 hours a day, every day of the year, to ensure that we provide you with emergency advice when you most need it.

Alternatively you can use the contact form below.

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In the crown court, while a fine is not the most common punishment meted out, when they are imposed they tend to be very large.  Before the Magistrates, any court fine imposed will still be a substantial share of weekly income.

Do I have to pay the court fine all at once?

Sometimes a court will order full payment (and may give a period of time for this to be completed), but in many cases, the court can order that you pay in instalments, usually weekly or monthly.

You will not be given time to pay your court fine (and therefore may be sent to prison forthwith if a fine isn’t paid) if:

• in the case of an offence punishable by imprisonment, you appear to the judge to have sufficient means to pay forthwith;
• it appears to the judge that you are unlikely to remain long enough at a place of abode in the UK to enable the payment of the fine to be enforced by other methods; or
• on the occasion when the fine is imposed, the judge sentences you to an immediate prison sentence, custody for life, or detention in a young offender institution for that or another offence, or so sentences you for an offence in addition to forfeiting his recognisance, or you are already serving a sentence of custody for life or a term of imprisonment or detention.

Setting a default period

Section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 requires a court to fix a period of imprisonment in default.

Imprisonment in default is an extra term of imprisonment that you might receive if a fine is not paid:

“…the purpose of ordering a sentence of imprisonment in default is designed to ensure, so far as possible, that the defendant found to have realisable assets in the amount […] ordered, should pay that amount and should obtain no advantage by refusing to do so. That authority stems not only from previous cases but also from the statutory provisions themselves.” (R v Smith [2009] EWCA Crim 344).

The maximum term is dependent on the size of the fine imposed:

Will a court always set the maximum term in default?

The period in default will depend on the amount of the court fine and where it falls within the banding. So, a fine of £55,000 would probably attract a default period nearer 18 months than two years. But this is not an arithmetical exercise.

What happens if I do not pay my court fine?

If you wilfully refuse to pay the fine, and all other enforcement options have been exhausted, you will be ordered to serve the default term in prison.

It is therefore very important that you make contact with your solicitor if your financial circumstances change and you are unable to pay a financial penalty. It is always better to try and resolve difficulties earlier than wait for enforcement proceedings to commence.

I would sooner serve the time than pay the fine, is that possible?

Yes, and no!

If you do not pay, then you will go to prison. The court will, however, always try to secure enforcement first.  Imprisonment is not a free choice.  Note also that in relation to some financial penalties, such as confiscation, imprisonment in default does not extinguish the requirement to pay.

 How we can assist

The law concerning non-payment of fines and other financial penalties can be complicated so this article is intended to give only a very brief overview of the issues involved.

Legal aid can be available in certain cases of default where your liberty is at risk.

If you have any concerns about payment of your court fine or wish to discuss any other aspect of your case then please contact your nearest office.  Details can be found here.  Alternatively you can use the contact form below.

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New offences of stalking (in addition to the existing offences of harassment) were introduced by Parliament relatively recently in 2012. The offences are harassment which involves a course of conduct that amounts to stalking.

There are two offences.  These are stalking involving fear of violence and stalking involving serious alarm or distress.

What is stalking?

There is no strict definition, but the legislation lists a number of behaviours associated with stalking:

• following a person
• contacting or attempting to contact a person by any means
• publishing material relating to a person or purporting to come from them
• monitoring a person’s use of the internet, email or communications
• loitering
• interfering with any property in the possession of a person
• watching or spying on a person

The list is not exhaustive.  Nor is behaving in one of these ways automatically stalking.  Context is everything in such offences.

 What must the prosecution prove in a stalking case?

• That there is a course of conduct
• which constitutes harassment, and
• the course of conduct amounts to stalking.

Additionally, for the offence involving fear of violence it must be proven that:

• the conduct causes another to fear that violence will be used against him; and
• which the defendant knows or ought to know will cause another to fear that violence will be used against him.

The test as to whether a suspect “ought to know” these things about their conduct is whether a reasonable person in possession of the same information would think that the course of conduct would cause the other to fear violence.

It is an offence if conduct amounts to stalking and causes another to fear, on at least two occasions, that violence will be used.  Alternatively, it will be an offence if the conduct causes serious alarm or distress and this has a substantial effect on a person’s day to day activities.

This could mean that they have to, for example:

• change a route they normally use
• move home
• change the way they socialise.

It could also mean a change to a person’s physical or mental health.

Are there any defences to stalking?

It is a defence to show –

• the course of conduct was pursued for the purpose of preventing or detecting crime
• the course of conduct was pursued under a rule of law
• that any conduct was reasonable

Additionally, for the offence alleging a fear of violence offence, it will be a defence if the course of conduct was reasonable for the protection of the defendant or another, or for the protection of their or another’s property.

What sentence could I get for stalking?

For the basic offence of stalking the maximum sentence is six months’ imprisonment.

For the offence causing fear of violence or serious alarm or distress the maximum sentence is 10 years imprisonment for an offence on or after 2 April 2017.  The maximum sentence is 5 years for offences committed prior to that date.

A restraining order to protect the victim from further contact can also be imposed.  This could be the case even where a defendant is found not guilty of the offence.

Seek early advice from an expert in criminal law

These are serious allegations.  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.

As experienced defence solicitors we know that there is always another side to the story, let us tell that for you.

The advantages of 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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From an era before a search warrant, in Entick v Carrington (1765), a case concerning the entry to and searching of premises, the court ruled:

“…if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.”

Entick v Carrington is probably the earliest case law concerning the law of search and seizure.  It is a legal power since described as a ‘nuclear option’ in the court’s arsenal in the case of R (Mercury Tax Group) v HMRC [2008] EWHC 2721.  But, of course, it is certainly not the last word.  Over the last few years, there has been a substantial body of developing case law designed to ensure that this most potent state intrusion into the lives of individuals and business is exercised lawfully and proportionately.

Why does it matter?

First and foremost, core constitutional principles are at stake.

These include the power of the state to enter private property.  Very often this is done during a dawn raid and with other family members present.  As a result the powers should not be used lightly, particularly during what is normally the very early stages of a criminal investigation.

Because of this, the case of R (Mills) v Sussex Police and Southwark Crown Court [2014] EWHC 2523 (Admin) held that warrants should only be sought as a “last resort and should not be employed where other less draconian powers can achieve the relevant objective”.

The taking of documents, files, computer servers and systems can have a profound reputational impact on businesses when staff see what is happening.  They and clients lose confidence in the business. The inability to carry out ‘business as normal’ can put the survival of any business at risk and can place an unbearable burden on the individuals involved.

Can I challenge a search warrant?

The powers of search and seizure under a search warrant are spread out over a great many legislative provisions.  The key message is to take our legal advice as soon as you are aware that anything might happen or has already happened.

What is clear is that warrants are very often granted on an erroneous basis.  The applications show scant regard for the legal principles involved in the issue of the search warrant.

Drawing a warrant too widely is a frequent issue as is demonstrated in the case of R (F, J and K) v Blackfriars Crown Court and Commissioner of Police of the Metropolis [2014] EWHC 1541 (Admin).

While warrants are issued via a judicial process, the Judge will only be able to rely on what is disclosed by the investigator in private.

Police officers are duty bound to provide the court with full and frank disclosure, highlighting any material which is potentially adverse to the application. This includes a duty not to mislead the judge in any material way. The judge must then apply a rigorous critical analysis to the application so that they can be satisfied that the evidence provided justifies the grant of the warrant and give reasons for their decision.

In Redknapp v Commissioner of Police of the Metropolis [2008] EWHC 1177 (Admin) the court ruled:

“The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person’s home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate or Judge in the case of an application under s.9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted.”

There are various avenues of legal redress available, including judicial review. Early intervention may result in the return of documents and property, and in some instances, a claim for damages might be possible.

How we can assist

Please contact us if you know that your premises are about to be searched or have been.  Keep any paperwork that you are given.  We will be able to give you expert legal advice on the legality of the search including the issue of the search warrant.

You can find your most convenient office here.

Alternatively please use the contact form below.