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On 9 May 2018 the Sentencing Council, which is the body responsible for setting sentencing guidelines in England and Wales, has published proposed new guidelines in respect to public order offences.  The consultation ends on 8 August 2018.

What public order offences are covered?

The guidelines will apply to the following offences, all of which are to be found in the Public Order Act 1986:

• Riot
• Violent disorder
• Affray
• Threatening or provocation of violence and the racially or religiously aggravated counterpart offences
• Disorderly behaviour with intent to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
• Disorderly behaviour causing or likely to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
• Offences relating to stirring up racial or religious hatred and hatred based on sexual orientation

When will the new guidelines come in to force?

The proposed guidelines for public order offences are being consulted upon.  As a result it is unlikely that any new guidelines will come into force before the end of this year at the earliest.

However, what we tend to see is that judges look at consultation guidelines, even when they are not supposed to.  Sentences may begin to reflect the new guideline before it is in force.  As a result it makes sense to keep a close eye on sentencing in this area of law.

What are the proposed changes?

These offences can vary greatly in their nature and in their seriousness. For example, affray, which covers the use or threats of violence which would make someone fear for their personal safety, may involve serious or sustained violence or a less serious incident where no one is injured.

The new public order offences guidelines aim to set out a clear approach to sentencing that covers the main factors that should be taken into account in assessing the culpability of the offender and the harm they caused.

For example, an offender with high culpability in the riot guideline may have used petrol bombs or firearms, been a ringleader in instigating violence or have been instrumental in escalating the level of disorder.

The guidelines also aim to encapsulate the wide-ranging harm that is caused by these offences. Individual members of the public may suffer physical injury, fear or distress.  There might be damage to their property.  Business owners may suffer loss of livelihood and damage to their premises.

Public disorder can inflict serious disruption and damage to local communities and police officers and other emergency workers may be attacked and injured. Incidents may also involve substantial costs to the public purse.

The guidelines also highlight other aggravating factors that would increase the seriousness of offences. This can include offenders inciting others to participate in violence, trying to prevent emergency services from carrying out their duties, causing injuries to police dogs or horses and using or possessing weapons.

Finally, the proposed guidelines also take into account trends in criminality and a social climate which has seen a rise in hate crime offending. The Council considered that a guideline on public order would be incomplete if it did not cover racially or religiously aggravated public order offences and those which specifically address stirring up of racial or religious hatred or hatred based on sexual orientation.

Will sentences for public order offences be longer as a result?

The Sentencing Council does not anticipate that sentence severity will increase, save for a couple of exceptions concerning fines.

Data exists on the number of offenders sentenced for public order offences, and the sentences imposed.  There is, however, a lack of data on the categories of seriousness of current cases. It is therefore difficult to establish how current cases would be categorised across the levels of harm and culpability in the draft guideline.

The fear, therefore, is that these new guidelines may result in tougher sentences being imposed that will stretch an already underfunded prison service.

Read more and take part in the consultation here.

How we can assist you

If you are a suspect in a case involving a public order offence then your interview with the police will be key in terms of whether you are prosecuted or convicted of an offence.  As a result there are a number of good reasons why you ought to take our free and independent legal advice if interviewed under caution.

If you find yourself facing court proceedings and are denying the offence then we will put together the best case possible to go before the Magistrates or a jury.  Some reasons why you might wish to instruct us can be found here.

Finally, in cases where you wish to plead guilty then we will assist the court in placing your case properly within any guidelines and ensure that all mitigating features are placed before the sentencing court.  Again, some of the relevant considerations for sentence can be found here.

Please contact your nearest office for further advice

or alternatively use the contact form below

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Newark criminal advocate Nikki Carlisle was instructed to defend an allegation of disorderly conduct before Nottingham Magistrates’ Court.  The trial was listed before a district judge.

Police officers change evidence in disorderly conduct trial

Two police officers gave evidence on behalf of the prosecution.  In their original witness statements they had both described Niki’s client as shouting and swearing in the street.  They described a number of other members of the public being present.  Their view was that his behaviour would have upset these people.  The officers went further to state that they were also distressed by the behaviour because he had been verbally abusive to them.

In a somewhat curious development, when the first officer came to give evidence he was unable to remember anything said or done by Nikki’s client.  This surprising turn put Nikki’s client in a much better position.

The second police officer, however, departed from his statement by saying that the behaviour was far worse than originally described.  He stated that our client had been aggressive and that he had been subject to “the worst verbal abuse that he had ever received in his life”.

The officer went on to give examples of the kind of the things our client had said to him.  Nikki was able to play the bodycam footage that had been provided to us during disclosure.  This showed that the defendant was not saying any of the things the officer had spoken of in evidence.

Bodycam footage undermines police evidence

Instead, it showed the second officer being sarcastic towards our client, goading him and then using what was clearly excessive force to arrest him.  This included spraying him in the face with CS gas.

Despite this clear evidence, the officer tried to explain the difficulties away.  He maintained that the abuse must simply not have been picked up by the body worn camera microphone.  He claimed that our client had been resisting arrest and that he was in fear of violence.

Nikki addressed the District Judge in relation to two substantial points:

• whatever the Judge made of the alleged conduct, he should not infer that members of the public would have felt harassed, alarmed or distressed without evidence of that
• the only person claiming to have been so affected by the behaviour was the second officer who could not be called a truthful witness.

The District Judge found our client not guilty of disorderly conduct.  The judge went as far as to comment on the unnecessary use of CS gas in this case.  Our client is pursuing a police complaint.

Why instruct an criminal defence solicitor?

This case demonstrates a number of reasons why you ought to instruct a solicitor to defend criminal proceedings on your behalf.  Although this was a minor matter when compared to many other offences, it was of great importance to our client.

Despite the nature of the offence we were successful in applying for legal aid funding to ensure his free representation in the Magistrates’ Court.  You can read more about legal aid here.

We were able to ensure that all relevant evidence was disclosed, including the important body worn camera footage.  Some recently publicised problems with disclosure can be found here.

Finally, we will ask questions on your behalf and make arguments based on the law and the facts to the courts.

Whether your case involves disorderly The reasons why you might want to think about instructing us in your criminal case can be found here.

Contact us

We represent clients across the country from our offices in the East Midlands.  You can find the details of your nearest office here.  Alternatively you can use the contact form below.

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We are pleased to announce that Elliott Moulster qualified as a solicitor in April following successful completion of his training contract during his time with us as a trainee solicitor.  He has accepted our offer of employment as an assistant solicitor within our regulatory department, undertaking prosecutions on behalf of the Health and Safety Executive.

Trainee Solicitor, Elliott Moulster, has sat and passed all of the Professional Skills Courses required for him to qualify as a Solicitor.

In order for anyone to qualify as a solicitor, Elliott had to undertake several years of study followed by a rigorous training process that also involved additional studies.

As a minimum, a prospective solicitor has to undertake four years of study – a three year degree followed by the Legal Practice Course.

Two year training contract for a trainee solicitor

This is followed by a period of usually two years working for a firm or organisation within the legal profession known as the training contract.  There are numerous requirements that must be satisfied during a training contract. They include:

• practice in at least three distinct areas of law
• two years’ work experience across these three areas
• experience in key solicitor competencies
• undertaking the Professional Skills Courses, and
• keeping a Professional Development Diary across the two years.

In order to make sure Elliott secured a broad range of legal training, he was seconded to Nottingham Law Centre for a period of his training.  His experiences at the Centre can be found here, here and here.

The Professional Skills Course

The Professional Skills Course involves continued professional development around key areas of solicitor practice. The mandatory courses include:

• advocacy
• client care, and
• financial and business skills.

In addition to this, a trainee solicitor must also undertake a total of 24 hours’ of courses in areas of their choosing.  These elective modules can cover practically any area of law and have the benefit of giving participants a greater understanding of the areas of law in question.

Securing Higher Rights of Audience

For his options, Elliott chose to undertake his Higher Rights of Audience Qualification.  This took up the entirety of the 24 hour additional training.  Higher Rights of Audience are required by any solicitor who wishes to conduct advocacy in Crown Courts, aside from appeals or committals for sentence.

The process for gaining the qualification involves intensive training.  Elliott took part in a four day training course in London.  This taught him the rules of criminal litigation as well as provided training in advocacy techniques.

At the end of the course Elliott had to sit two exams aimed at testing the skills and knowledge that he had developed.  The pass mark for the exams was at least 60%.  They consisted of:

• a two and a half hour written exam based on criminal litigation
• taking part in a 30 minute viva voce.  This is an assessment where answers to questions are given verbally as opposed to in writing ;
• presentation of a 15 minute court application on a legal issue such as bad character or hearsay, and
• the 15 minute cross examination of a prosecution witness who was played by an actor.

Despite some very tricky questions in the exams and a less than co-operative witness on the stand, we are pleased to report that Elliott  passed all of the exams and assessment.

Work experience and careers advice

We hope that this gives an overview of the training involved in becoming a solicitor.  We try and attend schools and colleges to provide careers advice where possible, and offer as much work experience to school and college students that we can.

If you represent a school or college and wish one of us to speak to pupils or students, or if you wish advice or are trying to secure a work experience placement yourself, then please contact us using the form below.

Periodically we will have a vacancy for a trainee solicitor and this will be advertised on our website and publicised through social media so please follow us on Twitter, Facebook and LinkedIn.

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There is a defence in law known as necessity or duress of circumstances.  It is often raised by our clients in early discussions about their case.

It can be very difficult to demonstrate.  It is only likely to apply in unusual and extreme circumstances.  It is used to describe a situation where someone is forced by the demands of the situation to act unlawfully.  In so doing, a worse situation was avoided by acting in this way. This defence is quite separate from an issue of self-defence which is often far more straight forward.

 

What do I need to demonstrate to show duress?

You will need to show that you only acted for as long as was necessary.  In a driving case where you need to escape a dangerous situation, for example, when you are over the legal alcohol limit, you must stop as soon as the danger has been averted. If you carried on driving, you would no longer have a defence.

You must be able to demonstrate that

• no other action could be taken
• there was genuinely a greater evil that was being avoided by behaving in the way that you did
• your behaviour did not go beyond what was absolutely necessary.

What if I have been threatened?

Sometimes a person will say that he committed an offence out of fear for his personal safety or that of someone else, because of threats that have been made.

The key point is for there to be a clear and close danger combined with the threat of serious injury or death. A threats to cause damage to property is unlikely to constitute a threat serious enough to provide a duress defence.

If there is a large gap in time between threat and offence so that a person could have gone to the police but did not, it would be extremely unlikely that any defence could succeed.

Gangs, criminality and duress

The defence can often arise in the context of gang violence or where a person might owe money to loan sharks due to drug use. Unfortunately for such individuals, the defence of duress is unavailable to those who, having entered those worlds voluntarily, understood how violence was used as a means of securing particular objectives.

In relation to gang membership the court of appeal, in Sharp [1987] QB 853, has ruled:

“… where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress.”

As always though, the law on this point is very complex so it will always be best to seek our expert legal advice.

What is the legal test for duress?

In Howe [1987] AC 417 the court expressed the test in the following terms:

“Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or … cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence].”

Do duress or necessity of circumstances apply to all offences?

 Duress can never be a defence to murder or attempted murder, but strangely it may be a defence to conspiracy to murder (Ness [2011] Crim LR 645).

The potential harshness of this rule can be illustrated by the case of Wilson [2007] 2 Cr App R 411, where a 13-year-old boy, powerless to ignore the instruction of his father, was unable to advance the defence at trial.

It is thought to potentially apply to all other offences.

Can necessity apply to using cannabis for medicinal purposes?

The short answer is no.

There is no defence of necessity or duress available for using cannabis for medicinal purposes. There have been many cases on this point and in 2005 the courts comprehensively rejected any such argument, stating that it fell well outside of the ambit of duress. It may however amount to mitigation of the offence.

How we can help

The defence of duress and necessity is complicated.  As a result this article can only ever be a short overview.  Whether it can apply in your case will be entirely dependent on the evidence.  It is vital, therefore, that you obtain expert legal advice and representation immediately the police want to speak to you.

You can find details of your nearest office here.

Alternatively you can use the contact form below.

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If you are over 17 years of age, the easiest answer to the question ‘will my name appear in the press?’ is that yes, it could. These days, press reporting via social media can happen very quickly.  It is often one of the things not thought about by those facing criminal proceedings.

Proceedings before the Youth Court

Anyone aged 17 or under will generally first appear in the Youth Court. There are strict rules that prevent the publication of the name, address, school or any other matter likely to identify a person under 18 who is a victim, witness or defendant in a youth court.

This restriction can be lifted in certain circumstances.  If you instruct is then we will be able to advise you and oppose any such application on your behalf if appropriate.  If a youth appears in an adult court the prosecutor will apply for an order to prevent the naming of a youth.

In civil proceedings,however, such as in applications for anti-social behaviour injunctions, reporting restrictions do not apply.

Can I receive anonymity or will my name appear in the press?

There is an automatic reporting restriction that prevents the identification of any teacher who is alleged by a pupil at the same school to have committed a criminal offence against the pupil. This restriction ends when the teacher is charged or summonsed to court and can be varied or lifted.

Victims of sexual offences and a limited number of other offences have lifetime anonymity.  In these cases the answer to the question ‘will my name appear in the press?’ is no.

Reports of certain hearings at court may only include the name of the defendant and the offences he faces. This includes allocation and sending hearings in the Magistrates’ Court and preparatory and pre-trial hearings in the Crown Court.

Once a trial is underway, you should expect to see reports of the entire proceedings, unless a Judge orders otherwise.  Of course, whether of not the case is reported may well depend on the nature of the case and the competition for other stories in the media at that time.

Discretionary reporting restrictions

Although an application may be made to restrict reporting of a defendant’s name any discretion has to be considered with care.  Such restrictions are not common in court proceedings.

An example of where an application may be appropriate is for a defendant who is in the witness protection programme.  This has been used recently in relation to John Venables, the killer of James Bulger.

For proceedings that are not in the youth court, there is a discretion to impose reporting restrictions in respect of a victim, witness or defendant under the age of 18. The court would need to be satisfied that the welfare of the child outweighed the strong public interest in open justice. There is a similar discretion for adult witnesses if their evidence would suffer if they were named as a witness.

Will the press be in Court?

Members of the press can sit in on hearings in any court, including the youth court, unless they are specifically excluded.  Such a course would only be in rare and particular circumstances.

The general principle is that justice should be open and administered in public. Even if the press is not present, this does not mean that your case will not be reported.

Local reporters sell stories to other newspapers, so do not assume that just because you appear before a court away from where you live, your own local press will not be aware of it.

How we can assist

The law in respect of reporting restrictions is complicated, and breach of a restriction is a criminal offence for individuals as well as members of the press. This article is intended to give only a very brief overview of the issues involved.

Press reporting is one of the issues that you need to consider early on in the criminal process, particularly if your case is likely to attract publicity.

You will need to consider the effect that the proceedings may have on others, particularly children, and how you might deal with that.

If you need any advice answering the question ‘will my name appear in the press’ or if you have any concerns or simply want to discuss any aspect of your case please contact your most convenient office.

Alternatively you can use the contact form below.