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.

The link to sign the petition against legal aid cuts can be found here. 

All posts by Andrew Wesley/h3>

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.

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.

Contact details can be found here.

Alternatively you can use the contact form below.

All posts by Andrew Wesley/h3>

Modern Policing – Lights, Camera, Action

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.

In this case, a jury was only out considering its verdict for five minutes before deciding that our client was not guilty.

Here, the footage was helpful in persuading the prosecution that the final account given by the complainant should not be relied upon.  The case was dropped.

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.

All posts by Andrew Wesley/h3>

Government Signals Tough Sentencing Changes

Over the last few days, the government has announced proposals to introduce new offences and increase sentencing for a range of other offences.

One of our criminal law solicitors, Graham Heathcote, explained the proposals on Radio Nottingham on October 16.  You can listen to his interview hear about the proposed changes to the road traffic offences and sentences.

Here is his written summary of the proposals.

Knife crime

Knife crime increased by 20% in the last year. Possession of a knife during the same period has increased by 23%. This has prompted the government to look again at this legislation.

New laws will make it an offence to deliver a knife sold online to a private residential address.  In the future it is proposed that all online purchases will have to be delivered to a collection address.  This will allow verification of the age of the purchaser when they collect the item.

Offensive Weapons

The possession of an offensive weapon in a public place is already a criminal offence.  Changes in the law will see an additional 19 items, including flick knives and push daggers, banned in private places such as residences as well.

Some limited defences will be allowed by the Government.  These will rely on cultural, artistic or religious use of the items.  There will also be common sense exemptions such as museum displays.

A new definition of ‘flick knife’ is also proposed.  This is intended to broaden the number of weapons that fall into this classification category.

School Premises

It is already an aggravated offence to possess knives and offensive weapons on school premises.

The definition of ‘school premises’ does not currently cover higher and further education establishments.  These might be sixth form colleges or universities. The intention is to change the definition to ensure that such institutions also fall within the legislation.

Threats with blades

The government intends to amend the existing offence of threatening with an article with blade or point or an offensive weapon.  This is currently set out in section 139AA of the Criminal Justice Act 1988.

The law as it stands requires the prosecution to prove that a defendant was threatening another with the weapon “in such a way that there is an immediate risk of serious physical harm to that other person”.

The plans will strengthen this offence.  An attempt will be made to ensure that if anyone threatens another person with a knife the offence is committed when the victim reasonably fears they would be likely to suffer serious physical harm. This test will be based on how a reasonable person would respond to such a threat.  It will not depend on whether the victim was objectively at risk of immediate serious physical harm.

Acid and Corrosive Substances

The perception is that violent attacks using acid and other substances is on the rise.  As a result the government argues that a new offence is justified.

The Government proposes to create a new offence of possessing a corrosive substance in a public place. This offence will be modelled on the current offence that can be found in section 139 of the Criminal Justice Act 1988.  This offence is possessing a bladed article in a public place.

It is envisaged that similar defences to the knife possession offence would also apply to the proposed corrosive substance possession offence.  These would include where a person could prove they had a good reason or lawful authority for having the item in a public place.

Additionally, the government proposes to introduce a new offence preventing the sale of the most harmful corrosive substances to those under 18. The intention is to mirror the existing knife legislation.  It is in response to the significant proportion of known offenders who are under 18.  The introduction of this offence would make it harder for those under 18 to obtain products containing the most harmful corrosive substances.  These liquids are of particular concern and are being used as weapons to inflict life-changing injuries.

Firearms

The government has identified two particular types of firearms that of concern

• large calibre (0.50) rifles; and
• rapid firing rifles

Both types of firearms are currently available for civilian use under general licensing arrangements.  There are concerns, however, about their potential for serious misuse and loss of life were they to fall into the wrong hands. The proposal is that these two types of firearms should be subject to the stricter controls under the existing provisions of section 5 of the Firearms Act 1968.  These prohibit a number of types of firearms from civilian use.

Driving Offences

It is proposed that the maximum penalty for causing death by dangerous driving, or causing death by careless driving while under the influence of drink or drugs, be increased to a maximum of life imprisonment.

Should this change is implemented it will lead to new sentencing guidelines being issued which will likely increase the typical sentence in all such cases.

Very few cases, however, would ever merit a sentence of life imprisonment.

There is also a proposal to create a new offence of causing serious injury by careless driving.

This is likely to be one of the most controversial proposals as there is a stark contrast between the lower level of culpability involved in such offending and the unintended harm that can arise.

Conclusion

The government appears to want to send out a tough message about certain types of criminal behaviour. It must be remembered however that sentencing is a fact-specific exercise where the personal mitigation of the defendant must also be considered.

In cases where a guilty plea is inevitable, or a finding of guilt has been made, it is our job to present to a court the best possible mitigation to ensure the lowest sentence possible.

If you face any criminal proceedings please contact one of our expert solicitors at your nearest office.  All of our office numbers operate 24 hours a day, 7 days a week to ensure that you receive emergency advice when you most need it.

Alternatively, use the contact form below.

All posts by Andrew Wesley/h3>

Derby crime solicitor John Young recently represented  a client alleged to have assaulted his partner.  Success hinged on a prosecution res gestae argument.

The prosecution allegation

The complainant alleged that an incident had taken place outside her home address early in the morning.  Our client’s vehicle was said to have been parked outside at the time.

It was alleged that our client had pushed the complainant into the road causing her to fall over.  She alleged that this resulted in two broken bones in her foot. Our client was also alleged to have threatened to kill her whilst threatening her with a screwdriver.  He was said to have snatched her mobile phone from her and then left the scene.

Denied allegations

John’s client denied the allegations. He accepted that he had been at the scene but maintained that the complainant was the aggressor. Our client then described how she had tried to hit him but had fallen over in the process, landing in the road. He denied that he had made any physical contact with her.

Our client provided an explanation explaining why he was in possession of the mobile phone and the screwdriver.

In the event the victim declined to provide a forma statement to the police.  She did not support the prosecution.  The allegation as set out above was set out in the complainant’s first contact with the police.

Prosecution depended on res gestae argument

Despite the lack of a formal complaint,  our client was charged.  The prosecution case was to be based on a 999 call made twenty minutes after the incident was said to have taken place.  CCTV footage showed the delay in making the call.

Bodycam footage from police officers captured an initial complaint but this was nearly fifty minutes after the incident. There was a statement from a delivery driver who saw the complainant falling the road.  He  could not say how or why she fell.

As no-one saw the incident aside from the complainant and the defendant, the prosecution had to rely on hearsay evidence to try and secure a conviction.  This evidence would come from the 999 call and the bodycam footage.  Surprisingly, the prosecution did not make an application to admit this hearsay evidence prior to the trial date.

At the beginning of the trial the prosecution made clear the basis upon which they were presenting their case and made the hearsay application.  The prosecution conceded that if the application was unsuccessful then the prosecution could not proceed.

Problems with the hearsay evidence

There were several problems with the res gestae argument:

• the bodycam footage showed that by the time the police arrived the victim was not “so emotionally overpowered” that the possibility of concoction or distortion could be disregarded
• During the 999 call the complainant initially stated her leg was broken.  after questioning the operator establish that the victim only believed this because her leg was ‘painful’
• It was clear from the bodycam footage that the leg was not broken.
• During the 999 call the complainant alleged that she had taken the screwdriver from the client in order to stop him stabbing her with it.  Police evidence showed that the screwdriver had been recovered from the client’s vehicle when he was arrested
• The timing of the incident showed that the complainant’s suggestion that this had been a chance encounter could not be true.
• The CCTV footage showed that the complainant was not telling the truth when she said she had been assisted by a stranger while she lay in the road.
• The footage also showed that, despite her allegation, she had not been swung around and then pushed by our client.
• There were further significant differences between the accounts given in the 999 call on captured on bodycam footage.

A detailed analysis of the evidence by the defence

John’s detailed analysis of the evidence meant that he was able to use all of the above features of the case to argue against the admission of this purported res gestae evidence.  This included a thorough understanding of the timeline in the case and all of the inconsistencies between the different parts of the evidence.

He argued that it would be wrong to conclude that the complainant was so emotionally overpowered that there could not have been concoction or distortion.

The Magistrates agreed with John’s submissions.  They refused to allow the Crown’s application to admit any of this evidence under section 118(1)(a) Criminal Justice Act 2003 and the relevant case law.

Once the Crown’s res gestae argument had been refused the Prosecution accepted that they had no further evidence to place before the Court.  No evidence was offered and the charge was dismissed.

Some more information about Res Gestae and hearsay evidence can be found here.

Defendant’s Costs Order Made

Our client was not financially eligible for Legal Aid.  He had funded the matter privately.  John successfully applied for a Defendant’s Costs Order which permitted recovery of a proportion of the private costs paid.

Contact Derby Crime Solicitor John Young

If you face allegations before the Magistrates’ court you will need an experienced solicitor with an eye to detail to ensure that your best case is placed before the court.

You will also want to instruct a solicitor who understands all of the relevant law and is fully prepared to make the arguments that you need to win your case.  This will particularly be the case if there is to be a difficult res gestae argument.

Please telephone John Young for an appointment on 01332 546818 or use the contact form below.