Over recent years there has been a vast increase in the number of second hand mobile phones being sold online through such sites as eBay or Gumtree. Such purchases may not be without risk as a client found when charged with making indecent images!
Chesterfield criminal defence solicitor David Gittins recently represented a client who had bought such a phone. He had been arrested and charged with possessing indecent images on his second hand mobile phone. David’s client was adamant that he knew nothing about the images. He maintained he was not aware that they were in his phone.
The year long investigation was followed by proceedings before Chesterfield Magistrates’ Court. At trial David successfully argued that there was no case to answer. As a result the charges were dismissed.
Free and independent advice in police interview
David’s client had been arrested in the summer of 2016 for unrelated matters. His mobile phone was seized by the Police and examined. The Police found a small number of indecent images on the phone. Understandably they wanted to interview our client about this.
He sought free and independent legal advice from VHS Fletchers and was represented by David during two separate sets of interviews. Our client denied the offence saying he knew nothing about the images. He was unable to comment about how they got to be in his phone, nor could he help with when they got there.
‘Making indecent images’
As a result the our client could do little else but deny the allegation. The police and prosecution were not happy with these denials so he was charged to Chesterfield Magistrates’ Court. The charge was making indecent images between two dates in 2016.
Making indecent images does not necessarily involve taking a photograph. Downloading an image and making a new digital file is sufficient for a person to be guilty of an offence. The offence is likely to be treated seriously by the courts and therefore a prison sentence is often imposed. Although the ‘maker’ of the image is unlikely to have met the child, it is serious because there is a child victim at the end of the chain of ‘makers’ who copy the image.
The Trial
David met with his client on several occasions to take instructions and give advice before trial. David’s analysis of the technical evidence showed that the prosecution could not show when the images arrived on the phone. In order to prove the offence the prosecution would have to show that our client was responsible for making indecent images.
The prosecutor could not show that the images were placed on the phone while it was owned by David’s client. Additionally, there was no evidence that the images had been opened and viewed since our client had owned the phone.
At no point during the prosecution was evidence called to challenge our client’s account that the phone was bought second hand. The prosecution simply sought to rely on a need by our client to explain the images. Our client, however, had the benefit of the burden and standard of proof and did not have to prove anything.
After the prosecution case had finished David considered the evidence that the court had heard. Because of this he decided to make an application of no case to answer. This can lead to a case being stopped before the defence case. It is possible in cases where there is no likelihood of a court finding a defendant guilty.
The Magistrates’ in this case agreed with David’s argument and the case against his client was dismissed.
His client was understandably delighted with this result. He had never been in trouble with the police before so kept his good name. He will hopefully be able to put the fourteen months that he had serious proceedings hanging over his head behind him.
Free representation with Magistrates’ Court legal aid
Legal aid is available for advice and representation before the Magistrates’ Court. It is dependent upon our clients satisfying the legal aid agency of the merits of their cases and that they qualify on their means. If it is granted then our advice and representation will be free of charge.
Contact a Chesterfield criminal defence solicitor
Chesterfield criminal defence solicitor David Gittins
Whatever the allegation that you face, you will want to instruct an expert criminal defence solicitor who will analyse the evidence in your case and prepare it accordingly. In cases such as this, it is important that any gaps in the evidence are identified and exploited to obtain the best result for you.
Please call us on out office number 01246 283000. Alternatively you can use the contact form below.
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Domestic Violence Protection Notices and Orders
Domestic Violence Protection Notices (DVPNs) are commonly issued by police when attending incidents of alleged domestic violence.
Invariably, whatever the rights and wrongs of a situation, and frequently it is quite impossible for this to be correctly judged, it is the male who are the recipient of the Domestic Violence Protection Notices even where there are cross allegations.
The effect of Domestic Violence Protections Notices is to force the removal of recipients from the named property. This is for an initial period of 48 hours. This will then be followed by an application to the local Magistrates’ Court for a Domestic Violence Protections Order. This order can result in a person’s removal from the premises for a further 28 days.
The rationale behind this process is to give the supposed victim of domestic violence the ‘breathing space’ they might need to seek assistance.
Can You Challenge a Notice?
Domestic Violence Protection Notices are issued in a relatively informal way. Because of this, there is no realistic way to challenge them before they take effect. As a result, any later successful challenge will only result in a mostly pyrrhic victory.
You are able, however, to challenge the application for the Domestic Violence Protection Order. We will be able to assist you in that process.
The legal framework for Domestic Violence Protection Orders
The legal framework for these orders was recently considered by the High Court in the case of Kerr v Chief Constable of Surrey Police [2017] EWHC 2936 (Admin).
The facts in this case are typical of many of the cases that we see before the courts. The supposed beneficiary did not actively support the making of the order. She was Mr Kerr’s partner of eight years.
The High Court upheld the legislative scheme in its entirety, observing that:
‘…within the experience of a Magistrates’ Court, that victims of domestic violence can be equivocal in their views. There are many reasons why at any given point in time they may express some reluctance to seek to exclude the partner. As [Counsel] correctly observes, that is precisely the danger that this legislation addresses by allowing a short-term emergency order to be made for the protection of a victim of domestic violence, even in circumstances where the victim is not seeking such an order.’
Is Kerr wrongly decided?
There is no case law cited in the judgement so as a result it is open to argument whether the High Court considered the recent decision of Herrington [2017] 2 Cr App R (S) 327. In that case, where when considering whether to make a restraining order, the Court of Appeal observed:
‘‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with. Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.
It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself. The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make.
Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained. She told them unambiguously that she wants this order revoked.’
How Can We Assist?
When new judgements come along, they are often presented as offering the complete answer to a legal problem. In our experience, they seldom do. Consideration has to be had to earlier decisions, particularly ones that had not considered in any new case.
Because of this, where appropriate, we will be more than happy to challenge such cases. We can advance alternative arguments where there is a legal basis to do so.
If you are facing the prospect of a Domestic Violence Protection Order following service of a Domestic Violence Protection Notice please contact one of our expert criminal law solicitors.
the easiest way to avoid problems is not to take any alcohol before you drive
be very careful the next morning and consider public transport if you have been drinking the night before.
We know, despite people being aware of the advice. people still make mistakes. In most cases this involves a momentary lapse in judgement from a person who has never been in trouble with the police before. A conviction for drink driving can have a serious impact on an individual and have a very real effect on their life.
We will try our best to minimise this impact where possible. This might be by fighting the allegation at trial or putting forward effective mitigation on sentence.
Chesterfield Criminal Solicitor David Gittins is regularly before Chesterfield Magistrates Court representing his clients in such cases. He was recently instructed by a client who had been involved in an accident whilst drink driving. As a result he faced a custodial sentence. Due to David’s assistance his client was able to avoid a prison sentence.
The Allegation
David’s client had been charged with drink driving following a road traffic incident. She had driven into the rear of a vehicle before driving off. She was followed home by a member of the public who had realised she was drunk. As a result the police were called.
David’s client had very little recollection of the incident. In police interview she accepted the evidence and because of this made admissions in interview.
She was found to have been just below three times the legal limit to drive. Being aware of the position she had placed herself in, she chose to instruct David before here first court appearance. As a result, David was able to give early advice and prepare the case in time for the hearing. Part of that advice was to remind his client that there would be credit for an early guilty plea. This is a reduction in the final sentence imposed.
Our client was a mother holding down two jobs to provide for her family. As a result, she was understandably upset about the risk of a prison sentence.
The Sentence
Following his client’s guilty plea to drink driving, David mitigated on her behalf. He was able to focus on the positive elements of his client’s character and future. Although an immediate prison sentence was a possibility, David argued that these positive aspects of mitigation meant that she could retain her liberty.
David’s client was received a Suspended Sentence Order for this drink drive offence because of this mitigation. This meant that provided she adhered to a curfew and undertook unpaid work in the community she would not be sent to prison. She also received the mandatory disqualification from driving.
Free legal aid in the Magistrates’ Court for this drink drive case
Due to the serious nature of this case and the real risk of prison and therefore loss of livelihood, free Magistrates’ Court legal aid was available. for the Defendant meaning all of David’s representation was free of charge.
Instruct a Chesterfield Motoring Law expert
Whether you face a police investigation for a road traffic offence or have court proceedings pending you will wish to instruct an expert motoring law solicitor. Please contact David at our Chesterfield office on 01246 283000.
Alternatively, you can contact a solicitor at one of out other five offices across the East Midlands or use the contact form below.
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This was the response of VHS Fletchers to the consultation paper released by the Legal Aid Agency (LAA) following the notification on 25 October 2017 of the closure of Newark custody suite with effect from 6 November 2017. The suggestion was to merge the Newark duty solicitor scheme with the Mansfield scheme.
All Newark arrests from that date are taken to and processed at Mansfield Custody Suite. The residents of Newark had already lost one public resource, that being the ability of their police station to process prisoners. There was a very real risk that they would lose another – detainees receiving advice from solicitors local to Newark under the Newark duty solicitor scheme.
The consultation document invited responses to three alternative revisions to the Newark duty solicitor scheme and Mansfield scheme. Only one of those appeared to put first the needs of those from Newark who are arrested.
After the consultation document was published there were two important indications from the police that impacted upon the proposals:
Cases that were identified as Newark cases would continue to be charged and either bailed or held to appear at Nottingham Magistrates’ Court rather than Mansfield Magistrates’ Court.
The police would continue to contact the Newark Duty Solicitor Scheme in cases which are identified as “Newark arrests” and would ensure that the Duty Solicitor Call Centre (“DSCC”) was informed in all cases where the detainee was arrested for an offence committed in Newark.
Newark police station
It followed from these indications that Mansfield custody suite was able to and intended to identify cases that had historically been dealt with at Newark police station. As a result, they would be able to direct those who seek the advice of a duty solicitor to a firm local to Newark.
The proposed options for changes to the scheme could be summarised as follows:
That the Newark Police Station Duty Scheme was merged with the Mansfield Police Station Duty Scheme with effect from 1 January 2018 with members of an extended Mansfield scheme covering both Mansfield and Newark police stations.
That the Newark Police Station Scheme was retained as a separate scheme and Duty Solicitors on the Newark rota would be directed by the DSCC to attend at Mansfield police station.
Newark Police Station Scheme retained as a separate scheme and firms post 1 January 2018 could elect to join either the Mansfield police station duty rota or standalone Newark scheme (if retained under option 2)
The LAA indicated that they preferred option 1. The reason given was that options 2 and 3 were reliant upon the police being able to identify to the DSCC “Newark cases”. A more cynical view might be that the LAA and DSCC would have one less scheme to administer under option 1, resulting in an inevitable reduction in administration costs.
Fortunately, since the consultation document was published, the police set out their intention to continue to identify Newark cases at the point of arrest and charge.
As a result, there appeared to be no requirement for option 1 to be adopted unless there were ulterior motives on behalf of the LAA.
VHS Fletchers supported Option 2 for the following reasons:
This firm’s investment in Newark
When new legal aid contracts were to be awarded this firm chose to apply for a contract for a new Newark office. The closure of Newark custody suite was not anticipated.
Newark duty solicitor Ian Carter
The office is staffed with two crime solicitors local to Newark – Ian Carter and Barbara McDonnell. We have since recruited a further Newark based lawyer – Legal Executive Advocate Nikki Carlisle – signalling a clear indication to continue to develop our business there.
Of course, we are in business. The rationale behind the investment that we make in training and recruitment of duty solicitors is that they provide access to new work through the duty solicitor rotas. Option 3 supports those firms who, like us, have chosen to locate their offices in Newark in order to provide legal aid services to that particular community.
Newark deserves its own duty solicitor rota
Newark-on-Trent is the largest urban area within the Newark and Sherwood District. It has a population of just over 37 000 residents. Of the three firms in Newark that currently undertaking criminal Legal Aid work, only our firm has office both in Mansfield and Newark.
Should Option 1 have been adopted, Newark residents who are detained at Mansfield police station may very well be represented by a duty solicitor from a firm who only has an office in Mansfield. It is understandable that suspects will usually choose to have continuity of representation. This might be either whilst they remain on police bail, under investigation or following charge when the matter appears at court.
Prohibitive journey times
However, in seeking continuity, such clients would face a journey of 20 miles simply to see their solicitor to give instructions and take advice. By car that journey takes between 40 and 50 minutes. By public transport this time rises to 1 hour and 30 minutes for a single journey.
The same situation would of course have arisen in relation to residents of Mansfield who were represented by a duty solicitor who only had an office in Newark. It is true that many of those that require the services of criminal legal aid solicitors are vulnerable themselves and on a low income that would make such a journey very difficult.
It was our view that it was both unreasonable and unconscionable to expect those being investigated for criminal offences to have a return journey of three hours simply to see their solicitor. This stress and expense would be imposed on top of the emotional burden that the investigation of proceedings impose on any individual.
Local legal aid solicitors should be supported
Newark duty solicitor Barbara McDonnell
Option 2 supports those criminal legal aid firms who have chosen to locate their offices in Newark. This is in order to provide legal aid services to that community. It would mean that the arrangements within Option 2 could commence immediately following the closure of the Newark Custody Suite. Newark based firms would not have to suffer the inevitable financial hardship of not having access to Duty Solicitor work for a period of two months.
Such a decision might be seen as supportive of a legal aid provider base that it is acknowledged is financially fragile.
Perverse consequences of merging two duty schemes
The perverse consequences of Option 1 would have been to permit automatic access to Newark residents requesting the duty solicitor to firms solely based in Mansfield. Access to such Mansfield residents would have been granted to firms solely based in Newark.
Whilst some firms may have seen there to be a financial advantage in having a place on a merged duty scheme following the closure of Newark custody suite, this would have been to ignore the needs of local Newark residents. Financial advantage should never be allowed to outweigh the impact on those we represent and assist who are often ill-equipped to represent themselves.
On this basis, Options 2 and 3 would have been unattractive and unacceptable to clients where the duty solicitor may or may not have been based geographically convenient to them.
An increase in LAA costs?
Newark Legal Executive Advocate Nikki Carlisle
The LAA will have to budget for increased travel claims from Newark firms to Mansfield custody suite following the closure of Newark custody suite. An additional consequence might have been that the LAA had to fund more instances of advice and assistance in the police station.
It seemed likely that clients, once they discovered where their duty solicitor was based, would want to transfer to a local firm. Where the duty solicitor had been instructed a second fee may be properly claimable by the second local firm nearer to a suspects home address.
Clients to choose for themselves
Following the closure of Newark custody suite, if clients wish to choose a geographically distant firm then that must be a matter for them. To have a geographically distant firm inflicted upon them was a separate matter to be avoided where possible. The risk of a reduction in access to justice was apparent to all who considered the issue. The problem would be avoided by the adoption of Option 2.
Outcome of the Legal Aid Agency Consultation into the Newark Duty Solicitor scheme
The majority view of those who responded to the consultation was that the Newark Police Station Scheme be retained as a separate scheme. This is to be adopted by the Legal Aid Agency.
Duty solicitors on the Newark duty solicitor scheme will continue to be directed by the Duty Solicitor Call Centre (DSCC) to attend Mansfield Police Station upon the identification of a Newark detainee.
The police have confirmed that they will send out a further instruction to all the staff at Mansfield to make sure that they correctly identify with the DSCC suspects who fall under the Newark scheme. Although errors may occur, the police will actively monitor the position.
As a result, the Legal Aid Agency will issue a Newark rota for the period from January to March 2018. This will be subject to additional monitoring and review in late January or early February 2018 to consider if any changes are needed from April 2018 for the following six month rota.
Instruct a Newark crime solicitor
Despite the closure of Newark custody suite, the best way to ensure that you instruct a solicitor local to you if you are a Newark resident is to make sure you ask for VHS Fletchers if you are arrested and detained by the police.
If you know the police want to speak to you, contact us and we will be able to make the necessary arrangements for you to be interviewed.
Should you face proceedings at either the Magistrates’ or Crown Court then we will see you at our Newark office to take your instructions and give you expert advice.
You can also contact us by using the form below.
Contact
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Driving Disqualification? We can help you get your licence back
In some instances, it is possible to apply to a court and ask that a driving ban is ended earlier than it would normally be. How will you be able to argue to get your licence back early?
If your circumstances have changed since being disqualified, it is worth discussing with one of our criminal law specialists whether or not you can take advantage of this legal provision.
Is legal aid available?
Legal aid may be available subject to a means test. Alternatively we will be able to provide you representation on a private basis. This is likely to be by way of an affordable fixed fee.
What are the rules?
You can ask the court to reduce the period of your disqualification after you’ve been banned from driving after the following periods have expired:
2 years when your disqualification was for more than 2 years but less than 4 years
Half the length of the disqualification period where the driving ban was for between 4 and 10 years
5 years in cases where your disqualification was for 10 years or more
What about a ban following a second drink driving offence?
We are often asked by clients who have been disqualified for a second drink drive offence whether they are also able to apply to get their licence back early.
The answer to that question is ‘yes’. The application will however be complicated as the High Court has expressed the following view:
“I would only add that justices … may if they think fit regard a mandatory disqualification as one which they are somewhat less ready to remove than a discretionary disqualification.”
But it will depend, as always, on the individual circumstances of your case. The decision in Boliston v Gibbons (1995), for example, showed the High Court to be very sympathetic to the plight of the applicant.
What are the criteria?
The law states that:
“On any such application the court may, as it thinks proper having regard to—
(a) the character of the person disqualified and his conduct subsequent to the order,
(b) the nature of the offence, and
(c) any other circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application.”
As a result, what any applicant needs to establish is that there is some compelling reason why the ban should be brought to an end early. such examples include employment opportunities, reliance on a vehicle for caring responsibilities, personal immobility etc.
Will the application be opposed?
It is very rare for an application not to be opposed. Because of this we will work incredibly hard to ensure that an impressive argument is put before the court.
Unfortunately simply turning up and throwing yourself on the mercy of a court is unlikely to result in a return of your driving licence early.
If the application is refused, can I make a further application?
A further application is possible but you must wait for three months from the date of the refusal to make your next application
How we can help you get your licence back early
We will assist in preparing and presenting your application to the court. This will include taking your instructions and gathering any supporting evidence that you may need to strengthen your case.
Our experienced team have significant advocacy expertise before both the Magistrates’ and Crown Courts. As a result we are best placed to secure the return of your driving licence.
arrested and charged with possessing indecent images on his second hand mobile phone. David’s client was adamant that he knew nothing about the images. He maintained he was not aware that they were in his phone.
examined. The Police found a small number of indecent images on the phone. Understandably they wanted to interview our client about this.
At no point during the prosecution was evidence called to challenge our client’s account that the phone was bought second hand. The prosecution simply sought to rely on a need by our client to explain the images. Our client, however, had the benefit of the burden and standard of proof and did not have to prove anything.
