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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.

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Senior Crown Court litigator Sara Lees-Collier and solicitor-advocate Jon Hullis were recently instructed in a Crown Court appeal against conviction by the Magistrates’ Court.

Our client had been convicted after trial before the Magistrates of resisting a police officer in the execution of their duty.  Although she had only received a fine, this in combination with the prosecution costs meant that she had a substantial bill to pay at the conclusion of her case.

She was aggrieved with the outcome of the Magistrates’ Court trial.  She maintained that she was neither violent towards officers or attempted to resist arrest.  At the conclusion of the incident she had a broken arm.

The prosecution case

Police officers had attended an address to locate an offender.  Upon finding our client they discovered that she was subject to a warrant from the Magistrates’ Court for her immediate arrest in relation to road traffic offences.  Our client had already made arrangements with another police officer to surrender to that warrant.

When the police entered the property she was asleep in bed.  She had been drinking, and accepted that she was tired an annoyed by what was an unnecessary arrest bearing in mind her earlier conversation with the police.

The police maintained that she became abusive and then aggressive when the police attempted to arrest her.   It was alleged that she attempted to bite a female officer and then tried to resist arrest.  The police maintained that during their struggle to arrest her she had fallen off the bed and broken her arm.

Fault was said to lie with our client rather than the officers.

The reason for the Crown Court appeal

Our client’s version of events was very different.  She maintained that she had been handcuffed to one wrist while still on the bed.  A male officer had then taken old of the handcuffs while she was on t the bed.  He twisted her arm behind her back and pulled her off the bed with force.

As a result she fell to the floor breaking her arm.  The injury was extremely serious.  Her  arm was broken in three places.  She had to have an operation and metal plates were placed in her arm. At the time of her appeal she still had no feelings in her upper arm. Nerve damage had resulted and she remained on morphine and other medication.

The officer said to have caused the injury had been dismissed from the police for gross misconduct in relation to a separate incident.  He had given false statements in other cases. Despite that the prosecution still wanted to proceed with the appeal, but did not want to rely upon that officer at any appeal.

An automatic right to appeal

Our client’s automatic right to appeal the conviction from the Magistrates’ Court to the Crown Court provided us with an opportunity to review whether additional evidence ought to be before the Crown Court on appeal.

At Jon’s suggestion, Sarah obtained a medical expert who prepared a report after liaison with our client’s treating consultant.  The report confirmed that the injury could not have been caused by a fall or slip off the bed.  There would have had to have been a twisting of her arm, consistent with her account, to cause the injury.  This increased the likelihood of her success with her Crown Court appeal.

Prosecution abandoned its opposition to the appeal

The report was served upon the Crown Prosecution Service who sensibly indicated that they would no longer be contesting the appeal.  The matter was listed before the Crown Court and the Magistrates’ Court conviction was overturned.

Contact us about your Crown Court Appeal

While there are always risks in pursuing a Crown Court appeal of a Magistrates’ Court conviction in terms of sentence and costs you will always want to seek our advice quickly.

The time limit for submitting any appeal is very short.  Legal Aid might be available, as it was in this case.

You can read more about how we will advise you in relation to any appeal here.

Your nearest office can be found here.  Alternatively you can use the contact form below.

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Regulatory and crime solicitor Martin Hadley recently represented a  pharmacist before the Fitness to Practice Committee.  His client faced allegations of dishonesty as well as  breaches of the Responsible Pharmacist & Controlled Drug Regulations.

A lack of early expert advice

In this case the Local Health Board acted upon issues raised by a “whistleblower”. Once the issues had been raised by the Board, our client’s then employer pursued a further investigation.

What was clearly a lengthy and often fraught disciplinary investigation then followed.  Unfortunately, rather than seek specialist legal advice, our client relied on guidance from informal advisers.  This remained the position throughout this stage of the process.

As a result our client had no idea that the evidence from this disciplinary investigation could and would be used in proceedings before the General Pharmaceutical Council and the fitness to practice committee.

Late instructions

Our client came to us very late in the process.  The case had already been heard by the Investigating Committee of the General Pharmaceutical.  A decision had already been made that there was evidence against the pharmacist upon which a decision could be made that fitness to practice as a pharmacist was impaired.

By the time Martin received instructions the evidence in the case was substantial.  The bundle of paperwork provided by the General Pharmaceutical Council was significant.  The page count was well over 500, comprising statements and exhibits.

Martin took our client’s full instructions.  This allowed us to make representations to the Council’s solicitors regarding the strength of their evidence on the dishonesty matters.  They agreed with Martin and the allegations were amended to remove certain aspects of the  dishonesty .

As part of our preparation Martin produced a bundle of documents to go before the fitness to practice committee for consideration.  This not only included documents in support of his client’s case but also admissions to be made by both parties as part of the hearing.

The fitness to practice hearing

At the hearing the General Pharmaceutical Council solicitors called two witnesses in support of their case.  Martin cross-examined them.  The questioning led the members of the Committee to agreeing that there was no case to answer in respect of one of the dishonesty allegations.

Once Martin’s client had given evidence the Committee announced that the Council had failed to prove the remaining matter of dishonesty.

A decision still had to be made as to whether Martin’s client was impaired in relation to practicing.  Martin made detailed representations based following his client’s evidence.  Taking these into account the Fitness to Practice Committee decided that our client was not currently impaired and was free to continue to practice

Contact Crime and Regulatory Solicitor Martin Hadley

Earlier advice and representation by an expert regulatory solicitor may well have made the entire process less fraught for our client.  We will always have an eye on the likely effect of an earlier investigation on later disciplinary procedures.

As a result, if you are notified that there is to be an investigation into any aspect of your practice please contact Martin immediately.  He can be reached by phone on 0115 9599550 or by email here.  Martin will be able to advise you wherever you are based in the country.  This will ensure that you make the correct decisions early on in your case.

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Notification Requirements and the Sex Offender Register

How to Be Removed From The List

What is the ‘Sex Offender Register’?

Despite its name, there isn’t an actual sex offender register.  The phrase refers to the notification requirements imposed upon those offenders convicted of sexual offences. Over 50,000 individuals are currently subject to these notification requirements.

The duration of the notification obligation depends on the sentence received by an individual and the age of the offender. Below is a list of the relevant periods for adult offenders:

What are the notification requirements?

The notification requirements imposed are complex.  They mainly involve keeping the police informed of your residence and any travel plans.  The police also require notification of changes to your personal details such as a change of name.  They will want to know whether a person is residing in a household with a child.  Bank and credit card details as well as passport/identity documents will need to be disclosed.

It may be that following sentence you do not understand your full obligations under the notification requirements.  If so, please contact us immediately so that we can give you specific advice.

What happens if I do not abide by the notification requirements?

It is important that you fully understand your obligations.  Non-compliance is likely to be a criminal offence.  You can be punished by up to 5 years imprisonment. Any breach is always treated seriously by a court.

Indefinite notification on the sex offender register

It can be seen from the table above that some offenders are subject to the notification regime for an indefinite period. When the regime was first introduced that meant that a person would be subject to the requirement for life.  A court judgment in 2012 changed that.

This change in the law now means that some offenders can apply to have indefinite notification requirements removed.

The law only changed, whoever, in relation to those with an indefinite period of registration.  If you are subject to notification requirements for a fixed term you are unable to apply to have them reduced or removed.

When can I make that application?

The timing of any application will depend upon your age at the time of the offence:

• an adult can apply after 15 years
• a juvenile can apply after years.

If you are also subject to a Sexual Offences Prevention Order that must be removed before an application can be made in respect to notification requirements.  Again, we will be able to advise and assist you in relation to this part of the procedure.

How do I go about doing that?

There is a 2-stage process.

Firstly you must make your application to the police. If that application is refused then the decision can be subject to appeal before the Magistrates’ Court.

Do the police always refuse these requests?

Although your initial feeling might be that they do,  in our experience this is not the case. Some police forces have reported an initial success rate in some two thirds of applications to be removed from the sex offender register.

It is not, however, a straightforward matter.  A simple letter to the police asking for the requirements to be lifted is unlikely to succeed. In considering your application, the police have to apply a statutory test.  As a result it is vital that your application is drafted professionally to give you the best chance of success.

When they determine an application, the police must—

(1) have regard to information (if any) received from a responsible body;

(2) consider the risk of sexual harm posed by the offender and the effect of a continuation of the indefinite notification requirements on the offender; and

(3) take into account the matters listed below:

(a) the seriousness of the initial offence;

(b) the period of time which has elapsed since the offender committed the offence (or other offences);

(c) where the offender falls within section 81(1) of the 2003 Act, whether the offender committed any offence under section 3 of the Sex Offenders Act 1997;

(d) whether the offender has committed any offence under section 91 of the Act;

(e) the age of the offender at the qualifying date or further qualifying date;

(f) the age of the offender at the time the offence was committed;

(g) the age of any person who was a victim of any such offence (where applicable) and the difference in age between the victim and the offender at the time the offence was committed;

(h) any assessment of the risk posed by the offender which has been made by a responsible body under the arrangements for managing and assessing risk established under section 325 of the Criminal Justice Act 2003;

(i) any submission or evidence from a victim of the offence giving rise to the indefinite notification requirements;

(j) any convictions or findings made by a court (including by a court in Scotland, Northern Ireland or countries outside the United Kingdom) in respect of the offender for any offence listed in Schedule 3 other than the one referred to in paragraph (a);

(k) any caution which the offender has received for an offence (including for an offence in Northern Ireland or countries outside the United Kingdom) which is listed in Schedule 3;

(l) any convictions or findings made by a court in Scotland, Northern Ireland or countries outside the United Kingdom in respect of the offender for any offence listed in Schedule 5 where the behaviour of the offender since the date of such conviction or finding indicates a risk of sexual harm;

(m) any other submission or evidence of the risk of sexual harm posed by the offender;

(n) any evidence presented by or on behalf of the offender which demonstrates that the offender does not pose a risk of sexual harm;

and

(o) any other matter which the relevant chief officer of police considers to be appropriate.

How can we assist in your application?

You will appreciate from the list of considerations that the appeal process is complex and will require a detailed application from you.

We can assist you in collating the material necessary to draft and submit an application.  This will ensure that any application you make has the best chance of success.  This will be true whether it is considered by the police or before a court.

Contact a specialist criminal solicitor

We have a number of solicitors who will be able to assist you with any query or application relating to the sex offender register.  Please find information about your nearest office here.  Our team provide nationwide advice and representation, so if it is difficult for you to make an appointment then please contact is using the form below and we can contact you to discuss how best to progress your case.

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Senior Crown Court litigator Caine Ward and in-house counsel Steve Gosnell provided crown court representation to a client charged with a serious sexual offence.

The offending was said to have occurred over a period of two days and the alleged victim was known to  Caine’s client.  Originally there were two allegations made by the same complainant.  He was in his forties and of previous good character.

Free and independent police station advice

Caine’s client took the opportunity to have free and independent legal advice in the police station.  He answered all questions put to him.  He maintained that they were in a relationship and any contact was consensual.

Further, he went on the state that there would be material on both his and her phone that would support his account.  In particular, there would be messaging between her and her friends that would corroborate what he said.

Our client was released on police bail.  He was told that this was to permit the interrogation of the mobile phones in the case.  He remained on police bail for seven months.

Following investigation, the police and prosecution made a bizarre decision not to charge the most serious offence, but simply proceed with one of the allegations.  Bearing in mind both allegations hinged on the credibility of the same complainant this was hard to understand.

Prosecution pressured to review the case

When the case was first before the court statements were served.  It became clear why the prosecution were not proceeding with one of the charges as the complainant had changed her account in a significant way.  It remained hard to see why the prosecution were continuing with the second allegation in the circumstances.

Of greater concern was that requests for the phone evidence that the police had had seven months to secure went unheeded.  Caine drafted a defence statement.  This demonstrated the importance of the phone evidence.  He repeated the request when the defence statement was served.

Again, the prosecution delayed in providing the information.  Eventually, it was confirmed that the complainant had refused to hand over her mobile phone to the police so downloads could not be obtained.

The matter was listed for two pre-trial reviews so that pressure could be placed on the prosecution to review the case.  On both occasions, different Judges raised concerns about the wisdom of proceeding with the case.  In having the case listed we were able to keep up pressure on the prosecution to drop the prosecution.

Missing phone evidence

The prosecution finally confirmed that not only had the complainant’s phone not been handed to the police but that she had disposed of it and now had a new one.  As a result, all of the evidence had been lost.  The complainant maintained that she had never been asked for her phone.  This was at odds with unused material that Caine had seen.

In the end the prosecution were compelled to review the case one further time and decided to offer no evidence in the week before the trial.  A not guilty verdict was entered. This was clearly the right decision and removed any risk that our client would be convicted before a jury.

All of this was achieved with our client having the benefit of Crown Court criminal legal aid.

Instruct experts in Crown Court representation

We have an experienced team of crown court litigators and in-house advocates to provide you with expert crown court representation.  An important part of the preparation of your case will be to see whether the prosecution can be put in a position where it has to drop your case before trial.

If you wish to instruct Caine in a case then please telephone him on 0115 9599550 or use the contact form below.