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Nottingham criminal defence solicitor Nick Walsh
Nottingham criminal defence solicitor Nick Walsh recently represented at a Nottingham youth court trial. The identification evidence was disputed and Nick made an application to exclude evidence from a police officer.
Nick’s client was fourteen year old charged with theft of a motorbike from a domestic garage. A police officer purported to identify Nick’s client from The evidence was that he had been identified from CCTV footage by a police officer who our client very well.
Identification evidence from CCTV footage
An identification in such circumstances is governed by the Codes of Practice set out under Police and Criminal Evidence Act 1984. As a result, following the not guilty plea being entered, Nick wrote to the Crown Prosecution Service asking that they disclose the contemporaneous notes of the CCTV viewing and the additional records required by Code D of the Codes of Practice.
The prosecution did not supply any of the documentation that had been requested. The officer did, however, give a further statement dealing with the circumstances of the identification.
Expert cross examination of a police witness
At trial Nick had the opportunity of asking the officer questions about the circumstances of the identification. His careful cross examination led the officer to concede that he had not kept any records or notes of his viewing of the CCTV. Additionally he could not be sure how many times he had viewed the footage. More damagingly he confirmed that he had been given that task of viewing the CCTV by his sergeant and had been told that Nick’s client was already suspected of the crime.
The officer stated that he had based his identification on the way the suspect walked. Having been made to view the footage again in court he had to accept that there was nothing distinguishing about the walk.
He also accepted that he had made his mind up that it was Nick’s client before he got a look at the offenders face. Finally, he had to accept that the quality of the CCTV footage was poor.
Application to exclude evidence obtained unfairly
At the close of the prosecution case Nick applied to the Youth Court Magistrates’ to exclude the identification evidence. This application was made under section 78 Police and Criminal Evidence Act 1984. This is on the basis of the breaches of the Codes of Practice. In this case, where the identification evidence was the only evidence in the case, it would be unfair to admit it.
The Magistrates agreed and the evidence was excluded. As a result, the prosecution had no option but to offer no further evidence and Nick’s client was found not guilty.
Client had the benefit of free criminal legal aid
Owing to our client’s age Nick’s representation of him was free of charge to both him and his parents under the criminal legal aid scheme
Contact an expert criminal defence lawyer
This case illustrates the importance of knowing the law that governs identification evidence. It also shows that you need a criminal solicitor on your side who can make sure that a police office is made to answer the difficult questions. This might open the door to an application to exclude evidence.
A worrying increase in the reports of noise nuisance from students
BBC News for Nottingham has today reports of ‘atrocious parties’ held by university students which have caused record numbers of complaints from local residents about noise nuisance. You can read the story here.
There is always likely to be issue arising when an area has a high number of students living in private rented accommodation within a residential area.
Very few students deliberately set out to annoy their neighbours. Problems with noise nuisance seem likely to result from a combination of alcohol and a genuine lack of thought.
Complaints to the police and the council are on the rise. If you are a student and live in a residential area then you are always likely to be at risk of a complaint if you or your household make excessive noise after 11pm.
What are the consequences of a complaint against you for excessive noise?
The position may depend on whether or not you are in a university owned accommodation or not.
Most universities publish codes of conduct that students must sign up to when enrolling. Whilst every university code will differ in some way they tend to follow the same format. There is likely to be a provision permitting a student to be disciplined for excessive noise in university owned accommodation.
The discipline procedure for excessive noise nuisance is likely to involve a report to a designated university officer. The officer will have the power to issue you with a reprimand or a fine.
Repeated and persistent breaches or other serious offences can result in you being removed from your university accommodation. You could also be reported to the university senate disciplinary committee. This would lead to a disciplinary hearing. A wide range of penalties are available for serious, persistent offences. Ultimately this can include exclusion from the university.
Private student accommodation
Even if you live off campus in private student accommodation then you could still find yourself at the sharp end of the university disciplinary regulations. Many universities stipulate within their code of conduct that behaviour off campus that damages the reputation of the university is considered an offence under the disciplinary regulations.
For example, the University of Nottingham is quoted in the BBC news article as saying that students would be disciplined if their behaviour ‘compromised the safety of others’.
Statutory Nuisance
Additionally, it is not only the university that can instigate proceedings against a student for excessive noise. Local Councils have the power to look into complaints about noise that could be categorised as a statutory noise nuisance.
For the noise to be a ‘statutory nuisance’, it must do one of the following:
Unreasonably and substantially interfere with the use or enjoyment of a home or other premises
Injure health or be likely to injure health
Councils must serve an abatement noise on persons who cause a statutory nuisance. This means that whoever is responsible must stop the noise. If they do not then they can be issued with a fixed penalty notice giving them the opportunity to pay a fine of £110 within 14 days in order to avoid prosecution.
If you do not pay the notice or fail to pay it within the 14 days then you can be prosecuted. This means that you will be given a court date, and if guilty you could be fined up to £1000 and order to pay the costs of the prosecution.
Civil Injunctions for noise nuisance
Both a council and the police have the power to apply for a civil injunction in the county court against those that create excessive noise that is capable of causing nuisance or annoyance. Breach of the injunction can lead to a prison sentence.
Contact a specialist to discuss any aspect of noise nuisance
Clare, and other members of our team, have experience in advising and representing students who face both university disciplinary matters or allegations that have been reported to the police.
Alternatively you can use the contact form below to seek confidential specialist advice.
All posts by Andrew Wesley/h3>
The government has been called upon to reverse the erosion of the UK citizen’s access to justice represented by further unjustified legal aid cuts. The latest of these cuts relate to the fees that are paid under the Litigators Graduated Fee Scheme (“LGFS”).
These cuts will now makes much of the more serious criminal legal aid work uneconomical. It will cause a risk to a fair trial by restricting preparation for Crown Court trials. It will reduce a client’s access to a local provider of legal aid services if not immediately then certainly over the period of the next few years.
Why is this important?
The cuts to access to justice for those facing criminal prosecutions must be reversed before the disaster that has occurred to the availability of representation for civil legal aid cases is repeated.
It is essential to halt the erosion of access to legal representation in the UK. Citizens, of course, face the full might of a state funded investigation and prosecution.
This constant erosion of legal aid eligibility and rates of pay over the last twenty years or so must strike at the heart of our democracy. It has the effect of destabilising the level playing field that justice requires. It increasingly divides the nation between those wealthy enough to buy legal services and the rest who increasingly are forced to act in person.
This socially divisive policy is a false economy that causes delay and unplanned expense.The present cuts are imposed despite a steady reduction in legal aid expenditure. The total bill to the government of legal aid has fallen by a third since 2011.
A Great Justice System? For who?
These cuts come at a time when the Government is attempting to present a positive image internationally for our legal services. The damage to our reputation in relation to access to justice may in fact be immense.
The Bach Commission recently reported into the effects of legal aid cuts. Appendix 5: of the report outlines some stark conclusions
Cuts to the fees paid under the Litigators Graduated Fee Scheme make much of criminal legal aid work uneconomical
The rate of remuneration for advocates in many hearings often falls below the minimum wage.
The application of the merits and means tests for legal aid in the magistrates’ court and Crown Court prevents deserving clients receiving representation and causes delay
The number of offices handling legal aid criminal work has reduced by 20% in recent years
Legal advice deserts are being created and increasingly those denied Justice will beat a path to MP’s surgeries in desperation.
This petition calls upon the government to reverse the cuts and engage in discussions for meaningful reform of the criminal justice system and its funding. It may be that sufficient interest can be generated by the forthcoming review on the effect of legal aid cuts, in combination with pressure from things such as this petition, to effect real change.
Nottingham solicitor advocate Jon Hullis recently represented a client who was facing a prison sentence for a minimum of 5 years for possession of a disguised firearm.
It was alleged that he was in possession of a stun gun or taser disguised as a torch. In the event he ended up with a lesser charge and a much better result following his guilty plea.
In Possession of a Stun Gun
Jon’s client was an HGV driver employed by a Polish haulage company. He made regular journeys through the channel tunnel.
Whilst he was at a service station on the M1 his vehicle was subject to a routine check by the police and DVSA officers. Although his tachograph and other driver’s records were in order the police found an item in his cab. This had the appearance of a torch but the police soon realised that as well as being a torch the item was a stun gun capable of delivering a shock of 8000 volts.
Free and independent legal advice
As a result our client was arrested. Although he chose to seek free and independent legal advice at the police station he asked for the duty solicitor rather than VHS Fletchers. As a result a different firm represented him in the police station.
In interview he answered questions and told the police that he had bought the item from a market stall in Poland for 20 zloty or approximately four pounds. Our client admitted knowing that it was both a torch and a stun gun. He explained that he had it with him due to the threat he faced from people trying to hide in his lorry when he passed through Calais.
As he was regularly frightened of being attacked so hoped that the stun gun would keep attackers away from him if need be. It was kept inside his cab. He had no intention of using it in this country as by the time he entered this country the danger would have passed. He stated that as items such as this were so freely available in his home country he did not realise that it was illegal to have the item in the United Kingdom.
Disguised firearm charge carried a minimum five year sentence
Our client was charged with being in possession of a firearm disguised as another object. At the initial hearing in the Magistrates Court his case had to be sent to the Crown Court. This was because the charge as it stood could only be dealt with at the Crown Court.
He had continued with the same firm of solicitors who had represented him in the police station. When the case had been sent to the Crown Court that firm had told the court that the defendant would be pleading guilty to the charge as it was currently drafted.
As a result, he ran a very real risk of receiving a sentence of five years. That sentence could only be avoided in exceptional circumstances. The admissions made in interview that he knew the nature of the device and that he had it for protection were unhelpful in mitigating any such sentence.
Transfer of representation
Our client was not happy with advice that he had received in both the police station and then at the Magistrates’ Court. The apparent inevitability of a guilty plea had been accepted and this fact had been communicated to the court. It appeared that no consideration had been given to alternative and lesser charges.
As a result, the client made contact with us following a recommendation from a prominent member of the local Polish community
The Law on Stun Guns
Under Section 5 Firearms Act 1968 stun guns are classified as firearms. They are always illegal to possess. This is remains true even in a private place such as your home. Possession of a stun gun alone can be punished by a prison sentence of up to ten years.
A flashlight stun gun
The situation for any client is more serious where a stun gun is disguised as another object. These are often mobile phones or torches. In those cases the court must impose a sentence of at least five years in prison. This remains the case even where someone has no previous convictions and pleads guilty at the earliest opportunity. The usual rules as to a reduction in sentence for credit for a guilty plea does not apply.
A judge will only be able to impose a lesser sentence where there are “exceptional circumstances”. The very wording indicates that such cases will be very rare.
In some cases it will take a close inspection to reveal that an item is in reality a stun gun. In the case of this particular client the item had “50,000 KV” clearly printed on the body of the item. The metal electrodes were also visible. Although the item was also a working torch, there was nothing specifically done to conceal the fact that it was a stun gun.
Representations to the Prosecutor
After carefully considering the law and the circumstances of this case, Jon spoke with the prosecutor. He made representations that this was not a stun gun disguised as a torch. It was actually a stun gun that also had a torch function. Jon’s research had shown that this was argument was supported by reference to it being widely for sale across Europe as a stun gun. It was used by both the police and military as a stun gun with a torch function so not a disguised firearm.
Jon was able to persuade the prosecutor of his view of the item. As a result the prosecutor accepted a guilty plea to an offence possession of a stun gun. The fact that it was no longer a disguised firearm meant that the judge would have greater flexibility on sentence.
Sentence
Understandably our client was desperate to be able to return to Poland. He lived there with his wife who was pregnant with their first child. Jon mitigated on his behalf with the aim of securing the most lenient sentence possible to allow him to return home.
The Judge agreed that this was an unusual case because it was plain that our client did not realise it was an offence to possess this item. He had no intention of using it in this country. He said this case should act as a warning to other drivers who may consider carrying these items.
In the event, however, our client received a two year conditional discharge. This is an order where no punishment is imposed. Providing our client commits no further offences during the period of the conditional discharge then this will be the end of the matter. The conviction will be spent.
Our client was obviously immensely relieved with this outcome and was incredibly grateful for the advice and representation he received from Jon. This was a particularly pleasing outcome bearing in mind where the likely sentence for the disguised firearm offence prior to VHS Fletchers becoming instructed solicitors.
Funding
Unfortunately, legal aid would not have been transferred in this case, As a result, our client felt it necessary to fund our representation privately. Where you have the benefit of legal aid it will usually be best to remain with that provider. In this case, however, our client clearly felt that it was not.
Contact a criminal defence expert to prepare your case
If you require advice from an experienced criminal solicitor in Nottingham about a disguised firearm then please contact Jon on 0115 9599550. Alternatively, we have similarly experienced solicitors across our offices in the east midlands.
Police forces across England and Wales are preparing for a rollout of ‘Body-worn Cameras’ or Bodycams. The government has announced that prison officers will shortly be assisted by this new technology as well.
What are Body-worn Cameras?
Body-worn cameras (BWCs) are small recording devices, very similar to a GoPro, which allows for constant audio and video recording in an unobtrusive manner.
The evidence from these cameras can be used to support a prosecution. Some argue that with officers and others aware that their actions could be caught on camera it should result in a positive effect on the behaviour of both the public and the police.
Is behaviour calmed when a camera is present?
It might be generally accepted that we behave better when being watched. For example, we are less likely to speed past a roadside camera or get involved in unlawful activity if we know we are being observed by CCTV.
In 2011, researchers at Newcastle University posted pictures of a pair of male eyes and the caption, “Cycle Thieves: We Are Watching You.” Bike thefts decreased by 62 percent in those locations. They remained the same elsewhere.
A study in Rialto, California (USA) in 2012 appeared to show dramatic changes in police behaviour as well following the use of body-worn cameras. Complaints against police officers were down 90% compared to the previous year. Some critics, however, have been sceptical of this study. In part this was because only fifty-four officers participated.
That caution did not result in a slowdown of the deployment of body-worn cameras. By 2015 95% of US large police departments had deployed BWC or had committed to doing so.
Now, police forces in England and Wales are following suit.
Latest research
The Rialto findings seemed to accord with common sense, but a new eighteen month study of more than 2000 police officers in Washington (USA) was published on 20th October. This disclosed ‘almost no effect’ on police officer behaviour.
Are BWCs a waste of money then?
This is a controversial question, and there may be many reasons for the Washington findings.
Other arguable benefits of BWCs are:
Detecting rogue officer behaviour after the event
Accurate recording of evidence
Building community trust in the police
Another new study will be published in the November 2017 issue of the Policing journal. In this research 249 people were interviewed. They had had recent encounters with officers wearing cameras. Those who were aware of the cameras perceived the encounters as more “just” than those who were not.
Conclusion
It would appear that the jury remains out as to the effect of Body-Worn Cameras by the police. Supporters claim that there are definite benefits for both the police and the public. Detractors cite privacy concerns, sizeable public expenditure to fund the cameras and a lack of evidence to support their continued deployment.
What is clear to us is that we see the evidential worth of cameras in an increasing number of cases. Such evidence must, however, be analysed carefully. It would be wrong to believe that ‘the camera never lies’. We often find that video evidence is taken out of context. It can be distorted. On occasions when it might be thought to be helpful to the defence it can go missing.
Contact a criminal defence specialist to discuss these issues
We have recent experience of dealing with cases where the footage from Body-worn cameras was decisive in putting forward our clients’ defences.
If you face criminal proceedings you will want to instruct a criminal defence lawyer who will ensure that evidence such as bodycam footage is analysed and deployed effectively in your defence.
We have offices across the East Midlands in Nottingham, Derby, Chesterfield, Mansfield, Ilkeston and Newark. All of our office numbers can be telephoned 24 hours a day 7 days a week to ensure free and independent legal advice is given to those detained in a police station.
Alternatively you can use the form below to make contact.
An identification in such circumstances is governed by the Codes of Practice set out under Police and Criminal Evidence Act 1984. As a result, following the not guilty plea being entered, Nick wrote to the Crown Prosecution Service asking that they disclose the contemporaneous notes of the CCTV viewing and the additional records required by Code D of the Codes of Practice.
not be sure how many times he had viewed the footage. More damagingly he confirmed that he had been given that task of viewing the CCTV by his sergeant and had been told that Nick’s client was already suspected of the crime.
