The Nationality and Borders Act 2022 created a new illegal entry offence contrary to section 24(D1) Immigration Act 1971. The provision states that a person who:
requires entry clearance under the immigration rules, and
knowingly arrives in the United Kingdom without a valid entry clearance,
commits an offence.
The offences created by the 2022 Act modify existing offences. There has already been a steady stream of people prosecuted for the offence under s 24(D1), which deals with people entering the United Kingdom via “small boats”.
At the present time there is no definitive sentencing guideline for an illegal entry offence. It carries a maximum penalty of 4 years’ imprisonment.
The statutory maximum sentence for this new offence is four years’ imprisonment. So too is the maximum sentence for an offence under section 24(B1) of the 1971 Act of knowingly entering the United Kingdom without leave. Before the amendment, the maximum penalty for the predecessor of that offence was six months’ imprisonment.
It is apparent that Parliament regarded that previous level of sentence as insufficient, both for the existing offence of entering without leave and for the new offence of arriving without a valid entry clearance. The four-year maximum is also longer than some other offences which may be committed in an immigration and asylum context.
The present offence is inherently less serious than an identity document offence of the kind for which the court in R v Kolawole [2004] EWCA Crim 3047 indicated as attracting a sentence in the range of 12 to 18 months, even on a guilty plea and even for a person of previous good character.
The predominant purpose of sentencing in cases of this nature will generally be the protection of the public. Deterrence can carry only limited weight as a distinct aim in the sentencing of those who have travelled as passengers in a crossing such as that upon which the applicant embarked. The circumstances of those who commit offences of that kind, as opposed to those who organise them, will usually be such that they are unlikely to be deterred by the prospect of a custodial sentence if caught.
The following considerations are relevant as to culpability and harm.
There is legitimate public concern about breaches or attempted breaches of border control, and this type of offence, which is prevalent, will usually result in significant profit to organised criminals engaged in people smuggling.
A key feature of culpability inherent in the offence, save in very exceptional circumstances, is that the offender will know that he is trying to arrive in the UK in an unlawful manner: if it were otherwise, he would take the cheaper and safer alternative route which would be available to him.
The harm inherent in this type of offence is not simply the undermining of border control but also, and importantly, the risk of death or serious injury to the offender himself and to others involved in the attempted arrival, the risk and cost to those who intercept or rescue them, and the potential for disruption of legitimate travel in a busy shipping lane.
The seriousness of this type of offence is such that the custody threshold will generally be crossed and that an appropriate sentence, taking into account the inherent features but before considering any additional culpability or harm features, any aggravating and mitigating factors and any credit for a guilty plea, will be of the order of 12 months’ imprisonment.
Culpability will be increased if the offender plays some part in the provision or operation of the means by which he seeks to arrive in the United Kingdom, for example by piloting a vessel rather than being a mere passenger; or if he involves others in the offence, particularly children; or if he is seeking to enter in order to engage in criminal activity (for example by joining a group engaged in modern slavery or trafficking). Culpability will be reduced if the offender genuinely intends to apply for asylum on grounds which are arguable.
Consideration of aggravating and mitigating factors must of course be a case-specific matter, but the following may commonly arise and will call for either an upwards or downwards adjustment of the provisional sentence. The offence will be aggravated by relevant previous convictions, by a high level of planning going beyond that which is inherent in the attempt to arrive in the United Kingdom from another country, and by a history of unsuccessful applications for leave to enter or remain or for asylum. Even if the previous attempts did not involve any criminal offence, the history of previous failure makes it more serious that the offender has now resorted to an attempt to arrive without valid entry clearance. The weight to be given to that factor will of course depend on the circumstances of the case.
The offence will be mitigated by an absence of recent or relevant convictions, good character, young age or lack of maturity, mental disorder or learning disability, or the fact that the offender became involved in the offence due to coercion or pressure.
Cases of this nature will often have powerful features of personal mitigation, to which appropriate weight must be given on a fact-specific basis. The circumstances which are relied upon as arguable grounds for claiming asylum, such as the offender seeking to escape from persecution and serious danger, are likely also to mitigate the offence of arriving in the United Kingdom without a valid entry clearance.
Some offenders may have been misled as to what would await them in this country if they paid large sums of money to the criminals who offered to arrange their transport. Some may have suffered injury or come close to drowning in crossing in a dangerously overcrowded vessel. It will be for the sentencer to evaluate what weight to give to circumstances of that nature in a particular case.
Instruct an expert in defending an illegal entry offence
Seeking legal advice at the earliest opportunity will allow us to provide advice to you about the law and the evidence in either a police investigation or a prosecution.
If you are arrested or know that the police wish to speak to you about any criminal allegation including an illegal entry offence make sure you insist on your right to free and independent legal advice. We will be present in your interview to advise through the investigation stage.
We have offices across the East Midlands and will happily travel across the country to provide representation for all types of offences.
Our offices
Alternatively you can use the contact form below.
Contact
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As a firm we have had to react to changing circumstances over the last last few years. This has resulted in us investing time and resources in an increased number of trainee solicitors.
Legal aid in crisis?
Once again the Government has ignored advice as to the financial difficulties legal aid firms face. This advice included the necessity for an immediate and significant rise in fees to permit the sector to remain viable.
Instead, the Secretary of State, Dominic Raab, has imposed a real terms cut in fees against a background of fee levels that have been, at best, frozen since the 1990s.
The furlough scheme allowed criminal lawyers the time to re-evaluate there position, with many across the sector choosing academia, family law, the independent Bar or civil practice.
Perhaps the biggest threat to staff recruitment and retention has come from the Crown Prosecution Service who launched an aggressive recruitment campaign in January 2020. Firms across the country have seen an exodus of staff to the prosecution that offers salaries that may not be matched in private practice and, on the face of it, a better work life balance.
Investment in trainee solicitors
In response to this combination of factors we have chosen to increase our investment in trainee solicitors specialising in criminal defence. We know that the work will always be interesting and hope that those who apply will remain committed to what can be a difficult and challenging job but ultimately a rewarding one.
As a result we currently employ six trainees across our offices.
We ensure that they obtain their police accreditation so that they are able to provide advice and representation to those being interviewed by the police, under the supervision of solicitor and Higher Court Advocate Shannon English. This ensures a consistency of approach to their training and allows them the pleasure of taking part in our out of hours’ rota. Advice is provided to those in police custody 24 hours a day, 7 days a week.
Thereafter they learn the skills they need through hands on experience preparing cases that are due before the Magistrates’ Court, Crown Court and the Court of Appeal.
Our trainee solicitors will undertake the courses required for qualification, but will choose the options that are bested suited to a career in criminal defence including courses preparing them for securing their Higher Rights of Audience.
At the end of training period there is invariably posts available across our offices as an assistant solicitor, representing clients at the police station and before the Magistrates’ Court with the opportunity for career development to become a Solicitor Advocate representing those facing allegations before the Crown Court.
Meet our trainee solicitors
Nottingham trainee solicitor Kinga Nowak
Kinga Nowak joined VHS Fletchers in June 2021, having initially completed a law degree in her native Poland before moving to the UK. She took an access course in criminal law before completing her Law Degree at the University of Lincoln. Following that Kinga completed her Legal Practice Course and Masters in Law at Nottingham Trent University.
Kinga will qualify in June 2023.
Chesterfield trainee solicitor Declan Smith
Declan Smith joined VHS Fletchers in July 2021, initially as a Paralegal at our Chesterfield Office before commencing his training contract.
He graduated from the University of Derby in 2020 with an undergraduate degree in law, before continuing his studies completing the Legal Practice Course in the spring of 2021 with the aim of qualifying as a solicitor.
Declan is to qualify as a solicitor in August 2023.
Nottingham trainee solicitor Danielle Lunn
Danielle Lunn joined VHS Fletchers in July 2022 as a Trainee Solicitor at our Nottingham office.
Her undergraduate legal studies were completed at Manchester Metropolitan University in 2020, graduating with a first-class honours Law degree. She then went on to complete the Legal Practice Course and Master’s in Law at Nottingham Trent University achieving a distinction.
Danielle will complete her training in January 2024.
Chesterfield trainee solicitor Chloe Wright
Chloe Wright joined VHS Fletchers in January 2022 as a Trainee Solicitor at our Chesterfield office.
Having graduated from Sheffield Hallam University in the summer of 2020 with an undergraduate degree in Law., Chloe then continued her studies at Leeds Beckett University, completing the Legal Practice Course in the spring of 2021 before completing a masters degree the following summer.
Chloe will qualify in January 2024.
Derby trainee solicitor Patrick
Patrick Fisher, known to many as Paddy, joined VHS Fletchers in July 2022 as a Trainee Solicitor in our Derby office.
He completed his undergraduate degree in Law at Nottingham Trent University, graduating in 2021 with a 2:1 classification.
Following this, he went on to study for his Legal Practice Course and Master’s continuing with his studies at Nottingham Law School.
Paddy is due to qualify in July 2024.
Nottingham trainee solicitor Kirsty Gregson
Kirsty Gregson joined VHS Fletchers in January 2023 as a Trainee Solicitor at our Nottingham office.
Kirsty completed her law studies at the University of Leicester in 2021, graduating with first-class honours. Kirsty then completed her Legal Practice Course and Masters in Nottingham at the University of Law.
Kirsty will qualify as a solicitor in July 2024.
Future Plans
We will shortly be recruiting for at least one trainee post based at our Nottingham office and due to start in July 2023. We will advertise the post as usual on Crimeline, and our LinkedIn, Facebook, Twitter and Instagram pages.
Please keep an eye on those if you are likely to be interested.
All posts by Andrew Wesley/h3>
It’s funny how things change as the years pass by. Perhaps only ten years ago, if we were thinking about particular spikes in alleged criminal offending over the Christmas period, the one that would jump out would always be drunk driving.
These days it is common to come across drug driving due to advances in technology and the ability to detect an increasing range of substances in the body.
It is well documented that if people believe the chances of detection to be low, the temptation to commit a crime is higher. Most people know that there is considerable pressure on police resources. Therefore even when we see a police car on the roads, it is most likely already being deployed to an active incident, not cruising the streets looking for errant drivers.
Ironically, the story here tends to be related to the morning after.
The main event is often an otherwise minor road traffic accident attracting the attention of a passing police officer, resulting in alcohol and drug testing and an arrest for those still affected by the excesses of the night before.
Drugs can be particularly problematic as their journey through the body is much less predictable than alcohol, putting those users at risk for extended periods.
Road traffic law remains one of the most complex areas of criminal law, so if you are being investigated for any drug or alcohol-related driving incident or have been charged or summonsed to appear before a court, it is very much in your interests to contact us at the first opportunity. These offences will invariably result in a driving disqualification if you are convicted. The stakes can be enormous, particularly if you rely on a driving licence as part of your employment.
We will explore all available offences and mitigation and ensure you receive the finest representation.
Drug Driving – Sentencing Guidance
As a guide, where an offence of driving or attempting to drive has been committed and there are no factors that increase seriousness the Court should consider a starting point of a Band C fine, and a disqualification in the region of 12–22 months.
Where there are factors that increase seriousness, the Court should consider increasing the sentence on the basis of the level of seriousness.
The community order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness. The Court should also consider imposing a disqualification in the region of 23–28 months.
The custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors. The Court should also consider imposing a disqualification in the region of 29–36 months.
Drink Driving – Sentencing Guidance
The starting point applies to all offenders irrespective of plea or previous convictions.
Drink and drug driving defence solicitors
If you do make a mistake and find yourself in trouble, there is a lot we can do to assist you.
In some cases the police will want to interview you about the offence. If this is the case, whether under arrest or as a volunteer, always make sure you seek our free and independent legal advice. You can read about the benefits here.
The police must follow complex procedures to establish a case against you. Our lawyers will be able to analyse the evidence to ensure that the procedures have been followed. We can successfully challenge the evidence in your case.
A road traffic solicitor can also investigate issues such as ‘laced drinks’ which can raise the opportunity to avoid disqualification. We will also consider other ‘special reasons’ that could be raised on your behalf. This might include the shortness of distance that was driven.
Legal aid might be available dependent upon your means and the circumstances of your case. Alternatively, you will be able to fund your case through an affordable fixed fee.
Contact one of our drink drive solicitors at your nearest office if you are being investigated by the police or taken to court as a result of the Christmas drink drive campaign. They will, of course, be able to discuss and other driving matters that you face.
Alternatively you can use the contact form below to ask for a call about your case.
Contact
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Duty qualified legal executive Nikki Carlisle
Duty qualified Legal Executive Nikki Carlisle was one of the staff who wasn’t furloughed when the Pandemic struck and it was apparent that volumes of work undertaken by the courts was to substantially reduce.
At the time Nikki kept a diary of the first week working under lockdown and it is perhaps a useful reminder of the pressure that she, and other staff, were placed under by the police and the courts, including new processes and technology.
The fact that our staff were able to continue to provide a quality service to clients in extremely difficult and potentially dangerous situations is a testament to their skills and professionalism. It might be fair to say that those involved in criminal defence were largely forgotten as other decisions were made.
Throughout we had an eye on the welfare of our clients and were able to deal with many voluntary police ‘interviews’ without the need for a formal recorded interview with police.
Nikki’s Diary
It would be an understatement to say that the Coronavirus pandemic is causing chaos in the world right now. We see it on the news constantly. We’re reminded of it every time we face the battle that is now the weekly food shop. It means that we’re unable to go to work as normal, or to visit our nearest and dearest.
Something that most people probably haven’t given a second thought to, is the impact that it is having on our criminal justice system.
I am one of the few people left behind at my place of work, as a result of the decision to furlough employees. This is a decision that most criminal defence firms have had to take, due to the fact that the courts are not running as normal. Employers have had to make this difficult decision to avoid redundancies.
I thought it might be an interesting insight for those who are not part of the criminal justice system, to see how we’re coping with these changes on a day-to-day basis.
Wednesday 1st April 2020
This is the first day of work “post-furlough”. There are only a handful of staff remaining, consisting of trainee solicitors, myself (a legal executive), solicitors, higher court advocates, and support staff. We each have our different roles to play in this strange new way of working, and on this particular day we have no idea what to expect.
My role consists of undertaking work at the police stations and at the Magistrates Court. The current position is that anyone who was charged with an offence and bailed to attend court, or who received a summons to attend court, will not have to come until a later date. The police are also supposed to be limiting the number of interviews they conduct face-to-face with suspects. The purpose of this is to prevent the spread of the Coronavirus. Courts and police stations are busy buildings, with a lot of people passing through every single day. In particular, we are also supposed to be complying with new “social distancing” rules which mean that we should be staying at least 2 metres away from people at all times.
The first job of the day is to deal with a youth who has been arrested and taken to a local police station, for an allegation of armed robbery. I received written disclosure from the officers in the case and then spoke with the client in a booth which contained a glass partition between us, so that I could take his instructions. The client had an alibi that he wished to raise for the offence. There was also a significant amount of work that the police still had to undertake. I made representations to the officers that it was not right at this moment in time to interview a suspect in a small room which would contain five people (the client, myself, an appropriate adult, and two police officers) so that we would not be able to maintain social distancing. The police needed to go and check out this client’s alibi and undertake further enquiries. I said that we would refuse to be interviewed at this time.
The officers refused to delay the matter and insisted on a face-to-face interview. They said that if my client refused to have an interview in a formal interview room, they would interview him in his cell. This was a young client who was vulnerable by virtue of his age. I decided it would be unfair to put the client in this situation and agreed therefore to a formal interview, but with only one officer into the interview room. No PPE (Personal Protective Equipment e.g. masks or gloves) was provided to me, the client, or his uncle who had attended as his appropriate adult. After the interview, during which we all sat as far apart as we could, and the client’s uncle kindly handed out antibacterial hand wipes, the client was released without charge, as there was insufficient evidence against him.
The frustrating thing about dealing with this case was the attitude of the police, and their complete disregard for the current situation and the safety of the people in the interview room.
Later that day I dealt with another case and had a completely different experience with officers from the same force. This case involved an incident where the client had been arrested for serious assaults. The officers told me that, if the client did not wish to be interviewed due to concerns about social distancing, they were happy to deal with the matter by way of a written statement from him. In this case however the client was very adamant that he wanted to give a full account in interview, which he was entitled to do. Again, we sat in an interview room as far apart as possible to comply with social distancing as best we could. During the interview, in his eagerness to demonstrate something to the officers, the client grabbed hold of my hand and came very close to my face. This was quite a distressing situation to be in. We are all aware that people can carry the Coronavirus without symptoms, and this is why social distancing measures are in place. It is scary to think that I could be exposed to the virus in the course of my employment and take it back home to my loved ones. Whilst the police continue to conduct face-to-face interviews, this is a situation that myself, and many others in the same job as me, will be faced with every day.
Thursday 2nd April 2020
After a day spent at the police station dealing with clients yesterday, today I found myself faced with a full day at court.
I attended my local court in the morning to deal with my remand cases, only to be faced with a very unusual scene. It transpires that today is the first day the court will be conducting hearings by way of Skype!
In normal circumstances, when I attend the remand court, I will obtain the paperwork by email in the morning, speak to the prosecutor about the case, and then walk across to the court cells to see the client. After consultation with the client I walk back across to the court building, and the hearing is conducted with all parties present in the room, and the client in the dock. Detainees from both Mansfield and Bridewell Police Station will be brought to the Nottingham Magistrates Court cells to be dealt with.
I am told today that the security staff who normally run the court cells are no longer working due to the Coronavirus. This means that the people who have been charged and kept for Court in Mansfield are still in Mansfield Police Station, and the people from the Bridewell are still in the Bridewell.
The difficulty with consultations arises when we are told that the Bridewell have one phone on which solicitors can speak to their clients, in the cells, to ensure the consultation is private.
There are approximately 7 solicitors at court, with 15 or so clients to deal with between us. This means that each of us will have to wait to speak to our clients, for however long it takes for the previous solicitor to finish speaking to their clients. This will hold the court up and cause massive delays in dealing with the workload.
Eventually we are told by the Bridewell that we are able to attend the police station to speak to our clients in their secure consultation booths to speed up the process. Whilst this is not ideal, as we are supposed to be avoiding going into police stations where at all possible, we feel obliged to do this in order to prevent delays in the court room and to prevent delays in our clients being released from custody.
I have two clients to see, and I see them both in the consultation booths. The first is the client that I had represented the previous day for serious assaults. The second is a client who was unrepresented in interview and has now been charged with serious drugs offences. After speaking to them both, I head back over to the court building to deal with their cases.
This is the first time I have ever used Skype, and after creating an account I sit at the back of court to observe other solicitors and see if there are any issues I need to be aware of before my own cases are called on.
The District Judge has a laptop with Skype on, as does the legal advisor, the prosecutor, and the defence solicitor. The defendant is being linked in via Skype on a laptop from the police station. There are some significant technical issues, which cause awful screeching feedback on numerous occasions, seemingly due to the number of users being present in one room. When my cases are called on, I move to another room within the court building and link into the hearing session. This seems to do the trick. One hearing goes without a problem, and the other is put over to the afternoon session due to lack of court time.
By the time I return in the afternoon another client has been arrested on a warrant, so I repeat the process again with him and conduct my final two hearings via Skype, again from a different room in the court building, with no issues at all.
As I leave court, I receive an email from a colleague, containing the new Interview Protocol which has been prepared by various parties to the criminal justice system (the CPS, the NPCC, and the Law Society to name a few). This is a protocol that MUST be followed by us all. It is an exciting read. It means that very few interviews will be conducted in person, meaning that we will be less at risk on a day-to-day basis.
Friday 3rd April 2020
Today was a frustrating one. After having received the new protocol the previous evening, which said that where possible interviews will be conducted remotely (officer emails us disclosure about the offence, we conduct a private conference with the client via telephone, and then use software such as Skype to be present in the interview) I received a call very early in the day to say one of my clients was at a local police station, having been arrested for a shop theft and an assault. I asked for disclosure to be emailed so that I could have my private consultation with the client. It transpired that this police station has no facilities to allow a private consultation with the client remotely.
So, despite having been told at 4.30pm yesterday that I would only have to attend the police station for the most serious offences, I find myself in a police station for two very low-level offences. Which it turns out, have both been caught on CCTV.
I spoke to my client and told him that I had seen the CCTV. He was happy for me to put forward a statement on his behalf saying that he would refuse to be interviewed about the offence, that there was sufficient evidence to charge him, and there was no point in putting us all at risk in an interview.
Frustratingly, I had to argue about this. Neither the officer dealing with the case, nor the custody sergeant, were even aware of the new protocol. Having anticipated this (call it a hunch), I had printed off two hard copies of the protocol to hand over to them. Having read the protocol, they still tried to insist on an interview. I explained that the protocol was quite clear, and under no circumstances would my client be interviewed.
My client was charged with the offence and was to be put before the court via Skype that afternoon.
As I was leaving, I was told that another client required my representation. This was another client who had committed offences which were caught on CCTV. This time the sergeant knew what I was going to say before I even said it, and this client was also charged to be put before the court that afternoon, without an unnecessary interview.
I left the station wondering why the police were still so insistent on interviews. At a time when we are all at risk of catching the Coronavirus, when we are encouraged to avoid interaction with other people where at all possible, some police officers seem to have forgotten that they are not immune to this virus, and that any of us could be carrying it without symptoms. It is not only in my interests and my clients interests to avoid unnecessary interviews, but also in the interests of officers as well.
I travelled to the office (where I am still able to work as I am the only person in the office) from the police station, in order to connect to the court via Skype to represent the two clients. The hearings again went without a hitch.
I have now conducted five hearings via Skype and although I would much rather conduct hearings in person, it is becoming less daunting. I am still very keen for things to get back to normal.
Saturday 4th April 2020
It was my turn to cover the weekend court session this week. I attend to cover court duty, meaning that I represent, free of charge, whoever requires representation but doesn’t have their own solicitor. I also have another client to deal with who has been arrested on a warrant.
This session is significantly more stressful than the previous two Skype court sessions I have dealt with. Firstly, the legal advisors covering court this weekend have not had to conduct hearings via Skype yet, and so they are learning the ropes themselves. Secondly, I have two cases, and they are in different court rooms.
After seeing my first client in consultation, I am about to see my second client when a custody sergeant tells me that the court have just called on my first client. At that exact moment I am in a different building, with four sets of secure doors to get out of before I can get over to court to conduct the hearing. I have no way of contacting the court to tell them I am about to see another client, because it is a Saturday so there is no one manning the court phones. I have no choice but to make a run for it. It takes me some time to get out of the Bridewell, through three sets of locked doors, before I then sprint across (in my suit and heels, no less) to the court building to join the court hearing session. After that hearing is over, I then have to head back over to the Bridewell to see the second client.
Technical issues mean that my second hearing has to be conducted using the camera on my laptop to Skype into the hearing but using the microphone on the legal advisor’s laptop so that the client can hear me.
I am very happy when I am able to leave the building after this stressful court session.
Monday 6th April 2020
Today was spent in the office catching up on my paperwork for the last few days. It has been a lot busier than expected at work since the furlough and I have to fill out reports for each police station attendance and court hearing, apply for Legal Aid to cover the costs of the client’s representation, and also write to all of the clients with the outcomes of their cases. Between catching up on paperwork, responding to emails, and dealing with client queries, the day actually goes alarmingly fast but much less stressful than last week!
Tuesday 7th April 2020
Today I had the unenviable task of undertaking diary management. As previously mentioned, the court has decided to not deal with “bail” cases for the foreseeable future. This means that I have to go through the court diary, identify all of the cases which will be adjourned, contact the court to find out the new hearing date, insert that date into the diary, and then write to the client providing them with the new date. It’s one of the less interesting aspects of the job but very important to make sure that we know when the clients are in court, and most importantly that the clients know when they’re in court!
And on the plus side, I haven’t had to go into any germ ridden police stations.
Wednesday 8th April 2020
I had a very successful day today, in terms of my ongoing battles with the police in enforcing the new protocols.
The fun began at 08.00 when the police contacted me to say they were ready to interview a client about an offence of shop theft. As per the new protocol I insisted that the disclosure be emailed to me. Once again, the officer didn’t seem to know what I was talking about but was happy to oblige anyway. The disclosure was that the client had been caught stealing items from a shop. He had been stopped by security in possession of the goods and the police arrived a short time later. I rang the custody sergeant and asked to speak to my client on the mobile phone in his cell. I was told that the phone was exclusively for use for the purposes of court hearings, and that I would need to come to the police station to see the client. Furthermore, I was told that he was displaying symptoms of the Coronavirus and I would have to speak to him through the hatch at his cell door!
Bearing in mind the time of day, I insisted that I be allowed to speak to the client on the mobile. Court did not start for another two hours, and under no circumstances would I be coming to speak to a client through the cell door. After some arguing the custody sergeant eventually relented. I spoke to the client who was happy for me to refuse interview on his behalf, on the basis that there was enough evidence to charge him already. He was charged and bailed for the offence.
Throughout the course of the day I successfully dealt with three other police station cases remotely. Disclosure was emailed to me by the officer, I spoke with the client over the phone, and then I emailed statements to the officers based on instructions that the client had received.
Whilst this might seem like a relatively easy way of dealing with cases, it is actually very time consuming and I am finding that the cases are taking just as long to deal with, as if I was actually attending the police station in person. The bonus of course being, that neither myself nor the clients are being put at risk of infection unnecessarily.
There is a WhatsApp group which contains the people who are still working. It’s a good way to find out what everyone is able to cover in terms of police stations and court cases, and also to report back to each other about how things are going in terms of the protocol. I am pleased that I’ve been able to report a fully successful day to my colleagues, with all matters dealt with remotely. There is still a lack of understanding from a lot of officers and custody sergeants about what is expected of them but I’m confident that if we keep battling on, we’ll be able to keep ourselves safe.
Thursday 9th April 2020
The early morning was a relatively quiet one, again spent catching up on paperwork from the previous day.
Mid-morning, I received a call to say that a case was ready to deal with at the police station. I spoke to the officer on the phone and he gave me verbal disclosure about the incident. I asked to speak to the client on the phone and was told again that the mobile phone was in use for the purpose of court. This time, due to the time of day, I accepted that. The officer said that there was no other way for me to have a private consultation with the client, other than to attend in person. In accordance with the new protocol I made representations to the officer that they were in breach of the Police and Criminal Evidence Act by not being able to provide facilities for confidential legal advice, and given that this case was not a serious one warranting immediate attendance, they should release the client immediately on bail to be interviewed at a later date. The officer agreed with my representations and the client was bailed a short time later.
I then received a call from a client who said that he and his brother were wanted by the police. An officer had contacted them to ask them to attend for a voluntary interview at the police station, and they wanted me to represent them. I discussed the protocol with the client, who was happy to deal with the case remotely if possible. I ran this by the officer who said that he would like to email me disclosure about the offence and a list of questions to put to the clients, and he would like the answers to be emailed back to him. This is a way in which slightly more complex matters can be dealt with under the new protocol. This means that the police can ensure that all of the questions they want to put to clients are dealt with, and still prevents the need for us to put ourselves at risk by attending the police station in person.
In the afternoon I attended court to deal with an application by the prosecution to adjourn a trial, and also a bad character application. These were both cases I was looking after on behalf of my colleagues who have been furloughed.
The District Judge at Court has been sitting every day, including Saturday, and has made positive comments in recognition of the hard work we are all putting in to keep the system going despite the difficult situation.
It’s little things like this which make it all a bit easier. Today’s advice; “keep trucking!”
Friday 10th April 2020
Today was Good Friday! I had most of the day off but was on call in the evening, covering Mansfield and Chesterfield area. This runs from 6pm tonight until 6pm tomorrow. I also held the out of hours office phone for the evening. Luckily, I didn’t have to deal with any police station cases myself. My colleague who was also on call however, covering Nottingham and Derby, was not so lucky. He attempted to deal with a case at the Bridewell Police Station by telephone but was told that there was no facility for the client to have a private consultation with him other than in person. He attended the police station for instructions, and luckily was able to deal with the matter by way of a written statement. The client was then released without charge due to insufficient evidence.
It is a shame that the facilities are not consistently in place for clients to have confidential advice on the phone. This is yet another example of someone going into a police station, putting himself and his family at risk, when the matter could quite easily have been dealt with in another way.
There doesn’t appear to be any consistency at all, and it’s incredibly frustrating.
Saturday 11th April 2020
Today I was still on call until 6pm and had a jam-packed day.
I managed to successfully deal with four police station cases by telephone, two at Mansfield and two at Chesterfield. Both police stations have the facilities now to enable clients to speak to you in their cell on a portable phone. In all cases the officers emailed me disclosure about the offence(s), I spoke to the clients on the phone, and then emailed over written statements.
The final case however, required an attendance in person. This was a voluntary interview for a historic offence. The police were keen to have the matter dealt with soon, however accepted that due to the age of the offence it wasn’t urgent that it be dealt with today, and if the client was happy for the matter to be postponed then they would postpone it. I spoke to the client over the phone. He was incredibly anxious, and already travelling to the police station. The stress of having the allegation hanging over him was causing him so many difficulties that he really did want to be interviewed and have it over and done with today. I therefore attended the police station to represent him. I was given written disclosure by the officer and was pleased that not only did the officer provide me with a face mask and gloves, but she, her colleague, and the client, also wore a mask and gloves. We each sat with our chairs as far apart as possible. In the circumstances, although not ideal, it was the safest way the interview could have been conduct and I was pleased with the attitude that the officers displayed in this case. The client was pleased to have the matter resolved that day.
I can only hope that other officers will all have the same attitude as this particular officer moving forward.
How we can help
We hope that the above demonstrates how hard we worked on behalf of our clients in extremely difficult circumstances. We exercised judgement as to the safest way for our clients to be dealt with within the justice system, often battling with police intransigence, particularly in the early stages of the virus.
Recent news coverage suggests that the Metropolitan Police will be pushing for the prosecution of the more than 1,100 people arrested during last month’s Extinction Rebellion protests.
The environmental protests across London caused massive disruption in certain parts of the city. There is a risk that they may be set to spread across other towns and cities over the coming weeks and months.
Public protest has always been a legitimate and important part of the democratic process. As such, these rights are enshrined in law.
An important question remains, howver. How do the police balance the right to protest against the rights of other people to go about their lives unimpeded?
Why have people been protesting?
Extinction Rebellion has organised the protests. This is a group concerned about the environmental destruction of our planet.
Frustrated that other attempts to force change in governmental behaviour have failed, they have resorted to a new form of peaceful protest. On its website the group claims:
‘Civil disobedience works when it’s peaceful, respectful, disruptive and undertaken en masse. We don’t want to disrupt people, but our Government’s failure over the last 30 years leaves us no choice. If we had functioning democracies, we wouldn’t need to. We’ve tried petitions, marches, letters, reports, papers, meetings, even direct actions; and emissions have continued to rise. Governments prioritise the short term interests of the economic elites, so to get their attention, we have to disrupt the economy. They have left us with no other option.’
In London the protesters blocked major roads and bridges, leading to significant chaos and disruption.
What was the police response?
The Metropolitan Police set out the dilemma during the protest in this way:
‘The serious disruption the Extinction Rebellion demonstrations are causing to people in central London and beyond is unacceptable and we completely understand the concern it is causing to those who are disrupted by it.
Ultimately, the Met has a duty to balance the rights of those engaged in protest and who are acting within the law, against the needs and rights of Londoners to go about their daily lives with minimum disruption. Where people are not acting within the law we continue to arrest them, and we anticipate arrests continuing to rise. We are also working closely with partner agencies, Transport for London, British Transport Police, City of London Police, City of Westminster and the Mayor’s Office, as well as the business community.
…we will have had more than 1,000 officers on the streets policing the demonstrations. This is putting a strain on the Met and we have now asked officers on the boroughs to work 12-hour shifts; we have cancelled rest days and our Violent Crime Task Force (VCTF) have had their leave cancelled. This allows us to free up significant numbers of officers whilst responding to local policing. We would also like to reassure people that we have ring-fenced the VCTF so we retain the capacity to deal with any unrelated violent incidents.
However, the protesters need to understand that their demonstration is meaning officers are being diverted away from their core local duties that help keep London safe and that this will have implications in the weeks and months beyond this protest as officers take back leave and the cost of overtime.’
Was anyone being arrested?
It is an almost unique feature of this protest that people are aware of the risk of arrest and were willing to be arrested – this ironically presents an incredibly difficult policing challenge.
On this issue the police said at one stage:
‘…we have arrested more than 460 people, the large majority for breach of Section 14 [of the Public Order Act 1986) and obstruction of the highway. Of those arrested, so far eight people have been charged with those offences. At this stage it is better for us to keep our resources and custody capacity moving and flexible than leave protesters sitting in cells for up to 12 hours before going to court for what, although highly disruptive, are lower level offences.
So everyone else arrested has been released under investigation and will be brought back to be formally interviewed and charged as appropriate in due course. We are aware that means some protesters immediately return to the area to resume their activities; those people will be arrested again.’ (By Saturday 20th April the number of arrests had risen to almost 800, and eventually to over 1100).
Will all those people be prosecuted?
Although this still remains to be seen, it is clear that the police wish all those they believe to have been involved in illegal activities to face court proceedings. This in turn could lead to any number of contested prosecutions that would in turn place an immense strain on the criminal justice system.
As a result, many commentators think that those released under investigation will face no further action.
Are there any legal defences to these charges?
There are several defences potentially available. The right to protest peacefully is not an absolute one. Case law is generally unhelpful. There are some developing areas of legal challenge and these are the ones that defence lawyers will be concentrating their efforts on. Law is a living instrument and must develop as society responds to concerns such as the ones raised by these protesters.
We anticipate that there will be a good number of legal challenges flowing from these protests.
People must, however, be prepared to face arrest, prosecution and possibly a criminal record and must individually decide whether that is a price worth paying.
Contact a specialist in protest law
Kevin Tomlinson
Our staff have a wealth of experience dealing with a wide range of protest law related offences.
Both Kevin Tomlinson and Gavin Haigh continue to be contacted by members of protest groups in order to advise and assist individuals across the country.
Rob Lowe
Clients are impressed with the dedication of both Gavin and Kevin to their defence. We have a willingness to visit the site of any allegations where necessary.
David Gittins
On occasion this has included standing up to landowners who attempt in intimidate them and hinder the preparation of cases. Their representation of individuals means that they are regularly recommended within the Protest Community.
Protest law is an exceptionally complicated area of law but our solicitors David, Kevin, Gavin who are ably assisted by Chesterfield accredited police station representative Rob Lowe have a history of successfully representing people accused following a wide range of protests including:
Anti-fur protests
Anti-hunt protestors
Aggravated trespass offences
Protecting Badger Setts
Obstruction of the Highway offences
Anti-fracking protests
Animal right activists
climate change protests
international law and human rights protests, such against use of certain plant machinery in palestine
The types of cases dealt with include:
aggravated trespass
obstruction of highway
s241 TULRA 1992 (
s 14 Public Order Act (conditions on assemblies and processions)
The offences created by the 2022 Act modify existing offences. There has already been a steady stream of people prosecuted for the offence under s 24(D1), which deals with people entering the United Kingdom via “small boats”.
