Practitioners and potential detainees may find this document helpful in terms of how Derbyshire police will be processing prisoners who have, or are suspected of having, the COVID-19 virus.
Not much. And we have no toilet paper stash either.
The best we can do is publish information relevant to your police investigation and court case as we find out about it. Follow us on one of our social media feeds for up to date information.
If you have a specific query about your case, or know that you can’t make an important date due to illness, please contact your nearest office straight away.
All posts by Andrew Wesley/h3>
As the UK prepares to move into the ‘delay phase’, changes are expected to criminal justice procedure. So, what might be expected to change?
Criminal Investigations
In the event of any public disorder, work on low priority criminal investigations may slow or stall entirely as police resources are diverted elsewhere.
Most police custody suites hold relatively few individuals and they are generally not held in close proximity, so this should not present any particular difficulties for policing.
If police officers are off sick, capacity may be affected, and this again may impact on police work volumes.
Precautions already in place, such as not shaking hands and being extra vigilant to observe basic hygiene rules are likely to be emphasised.
Criminal Proceedings
Some criminal processes can be changed by way of secondary legislation, so it is possible that custody time limits which regulate the maximum period a person can be held in custody, might be lengthened (The Prosecution of Offences (Custody Time Limits) Regulations 1987).
Other processes will need to be changed by way of emergency legislation.
The Civil Contingencies Act 2004 does not permit changes to ‘criminal proceedings’. The term ‘criminal proceedings’ is not defined in the Act and has been the subject of intense discussion in the past (concerning terrorist provisions), but would likely be interpreted as being the point from charge.
Therefore, it is likely that the government will have to introduce further emergency legislation to deal with changes to video-link arrangements and case management, particularly as the use of juries may become too high a risk.
We are however unlikely to see the equivalent of ‘Diplock Courts’ (trial by Judge alone).
Prisons
Prisoners are held in a large population at close quarters, and this makes the prison estate a high-risk area for the spread of infection. The absence of prison staff due to illness will increase pressures further and may leave some prisons too challenging to manage.
The Secretary of State already has powers that would allow for the early release of prisoners, and this may need to happen, no matter how politically unattractive this may seem.
We will have to wait and see what proposals emerge as the coronavirus spread continues. Be assured, however, that at the forefront of our thinking will be safeguarding of fundamental rights, and we will not hesitate to challenge any processes that threaten to weaken these.
How can we help?
Not much. And we have not toilet paper stash either.
The best we can do is publish information relevant to your police investigation and court case as we find out about it. Follow us on one of our social media feeds for up to date information.
If you have a specific query about your case, or know that you can’t make an important date due to illness, please contact your nearest office straight away.
All posts by Andrew Wesley/h3>
A new series on Netflix, ‘The Stranger’, is receiving rave reviews. Viewers have been keen to discover the secret being kept from lawyer Adam Price as he searches for his missing wife.
There are many sub-plots along the way that involve the blackmail of several individuals keen to suppress unsavoury stories that could otherwise make their way into the public domain.
What is ‘blackmail’?
Section 21 of the Theft Act 1968 defines the offence in the following terms:
“A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief:
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is a proper means of reinforcing the demand.
The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.”
In almost all instances the offence involves a threat to reveal information known about a person unless that person, or another on their behalf, pay to keep it a secret.
What is the penalty for blackmail?
The offence carries up to 14 years imprisonment. As a result it is one of the most serious crimes on the statute book.
In Hadjou 11 Cr App R (S) 29 the offence was described as one of the ugliest and most vicious criminal offences, akin to “…attempted murder of the soul”.
These are some examples of the general approach to sentencing:
Mincher [2016] EWCA Crim 1528
A sentence of two years imprisonment had been passed, suspended for two years. This was judged to be unduly lenient and replaced with five years imprisonment.
In this case the defendant had threatened the victim that if he did not give her the money she wanted, she would tell the police that he raped her. The defendant took in total £40,000 from the victim and was described as a socially awkward and vulnerable man.
The court held:
“Blackmail [is] one of the most serious and vicious offences in the criminal calendar. The authorities suggest that threats to disclose discreditable conduct, whether that conduct occurred or not, are to be taken even more seriously because the injury done to the victim “tends to be enduring fear, ever present anxiety and fear of discovery which gnaws away at the victim for long periods”.”
MJC [2015] EWCA Crim 1519
Here, a sentence of two years imprisonment was reduced to eight months on appeal. The defendant was a 33-year-old married man of good character. His wife’s 14-year-old sister became involved in an exchange of sexually explicit images with a 16-year-old boy, the victim. The defendant, aware of the pictures, threatened to report the complainant to the police unless he was paid £75.
The court held:
“In the present case, it is evident that there was no sophistication or premeditation in the blackmail. However, for a mature man to make the kind of threats he did to a misguided young man, as the appellant did in this case, albeit over a limited period of time, was plainly deeply unpleasant.”
These cases show that while there may be a wide variation in sentencing, the result will be very much fact specific. No case has the status of a sentencing guideline, but in almost all cases a sentence of imprisonment will result.
Contact a criminal law specialist
Blackmail will always be treated as a serious matter.
If you are arrested or know that the police wish to speak to you about an allegation involving blackmail, make sure you insist on your right to free and independent legal advice.
The starting point is that no prosecution can go ahead unless there is a realistic prospect of conviction. How the prosecution case is formulated remains a matter for the Crown Prosecution to decide.
These are common issues:
Where a statement has been provided
If a witness will not cooperate, the prosecution has the option to apply for a witness summons to force that witness to court. Almost all witnesses are ‘competent’. This means that they can be called to court to give evidence. If they refuse to attend voluntarily then they can be brought to court under arrest.
Once in the witness box a witness may then decide to answer questions and the case will proceed as usual. If a witness refuses to answer questions they may be punished for contempt of court. This threat is often enough to persuade them to comply.
In some instances a witness cannot be forced to answer questions. Witnesses in such cases are referred to in law as ‘not compellable’. We can advise further on the rules that apply to any specific case.
Where a witness is absent
The prosecution may be able to rely on the witness’s evidence by making an application under the hearsay rules. This procedure is often used if the witness is too frightened to give evidence or cannot be found.
The rules here are particularly complex. You will wish to take legal advice and all of our solicitors are well versed in their proper application.
No statement is ever made
The prosecution may be able to proceed without any evidence from the witness. The CPS can rely on on other witnesses or sources of evidence.
In cases where the police attend an alleged domestic violence incident, the officers may well have taken footage on body worn video cameras. These record what is said and done when they arrive.
In law, this is termed real evidence and may also amount to what is referred to as ‘res gestae’ evidence. This means that it may well be admissible.
The evidence of a person who makes an accusation in the immediate aftermath of the incident may find that this account is admissible at trial even without their attendance.
Similarly, any admissions recorded at the scene, whether via video or other means,may also be admissible under normal principles. The same may well apply to ‘999’ calls to emergency services.
The wider public interest?
There is a wider public interest in pursuing some prosecutions, even where the immediate victim of the crime does not wish the matter to progress to court or trial.
Contact a criminal law specialist
If you are arrested or know that the police wish to speak to you about an allegation where there may be a reluctant witness, make sure you insist on your right to free and independent legal advice.
The legal rules outlined above give only a brief flavour of the legal framework, the legislation and case law is voluminous and seldom as clear cut as some might think. Legal representation is likely to be key to the outcome of your case.
We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.
VHS Fletchers offices across the East Midlands
Alternatively you can contact us using the form below.
Contact
All posts by Andrew Wesley/h3>
A meeting is to be held on 3rd February 2020 to obtain views from ‘stakeholders’ about a plan to move the remand court at Chesterfield Magistrates’ Court to Derby Magistrates’ Court instead.
It is suggested that a low volume of prisoners mean that it will be a better use of Court resources to transfer prisoners away from their ‘home’ court and to a court room nearly an hour away, door to door by car, or 30 miles.
We have some concerns, however, that all might not be what it seems. For example, custody cases are often dealt with as part of a general plea list rather than in a specific custody court. Additionally the court has itself reduced custody cases by allowing those subject to warrants surrendering themselves to the court rather than to the police station and then the cells.
A steady trend
The process of court closures started years ago with a procession of court closures across the country. In this area we have lost Ashbourne, Matlock, Glossop, Swadlincote and Buxton for example.
Chesterfield Magistrates’ to Derby Magistrates’ door-to-door
It is hard to believe that this isn’t the first step in a ‘rationalisation’ that will see all Chesterfield Magistrates’ Court work moved to Derby. For example, if there are no longer staff in the cells to deal with remand prisoners, how can a defendant be sentenced to custody at Chesterfield, or how can a custody trial be dealt with?
Case by case more work will be removed from the court until it is declared ‘inefficient’ by HMCTS and then closed, even though it is HMCTS that has rendered a court ‘redundant’. This pattern is seen over and over again.
Entirely unsurprising?
This ‘need’ for efficiency is a direct result of the court in Chesterfield lacking staff. Since October 2019 Chesterfield Magistrates’ Court has lost 2 legal advisers on top of the 2 lost in the preceding 18 months.
Flexible working means a further 3 days have been lost as a legal adviser has been permitted to reduce from full-time to 2 days a week.
A further legal adviser has been seconded to Stafford for a ‘project’.
Salary and conditions, including the removal of most admin staff, resulting from austerity measures make the court service far less attractive than 15 or 20 years ago so there is inevitably a difficulty in recruiting.
Separately, legal advisers are no longer contractually obliged to cover Saturday or other occasional courts. As a result it was difficult for the courts to keep sitting over the Christmas period.
While we understand that trainees are being recruited this can only be a partial solution in the medium term. It seems unlikely that the Ministry of Justice will ever fund adequate staff or pay levels.
Area served by Chesterfield Magistrates’ Court
In the meantime, this failure on behalf of the court service will be subsidised by the defendant and their families, solicitors and other court users.
Where is the defendant in all this?
While prisoners will have the dubious advantage of free transportation to Derby from the police station, they will be less fortunate on the return journey should they be released on bail or because they are sentenced to a community penalty.
And of course this plan will not just affect Chesterfield residents. Chesterfield Magistrates’ Court also serves those communities even further afield such as High Peak. They already face the prospect of being brought before a Magistrates’ Court in Manchester, and may now be expected to find their way back from Derby. While only a little over an hour in a car, on public transport the journey is at least two hours.
A bail application is perhaps one of the most important hearings that a defendant will have. Understandably their family may wish to attend in support. Family may be in a position to provide an address, or surety, or useful information about the health of mental well-being of a defendant. They will have to be able to afford and make the journey to court and back if they wish to offer that support and input.
Vulnerable defendants may suddenly find themselves alone.
Additionally we assume that the court thinks that it doesn’t matter that there will be an increased likelihood that defendants will be kept in police cells over night, as the cut off time for getting a client into a remand court will inevitably be earlier than before.
And what of the solicitors?
Everybody knows that margins under legal aid are slim, and that many firms operate with marginal profitability. Fixed fees are paid sometimes with, and sometimes without, travel time as an extra payment. In any event, the hourly rate for travel does not permit any profit element.
The change will mean that for solicitors based in Chesterfield, instead of travelling to their local court they will now have to travel to Derby with a risk of no payment, or no profitable payment, being made. More time will be spent at a loss, and employers will have to compensate staff for the travel expense in any event.
For example, one of our solicitors will face an hour’s journey, more than double the travel time they currently undertake.
An additional cost will also have to be absorbed. To be at court at a reasonable time solicitors will have to set off earlier. Who pays for that in terms of salary? Does it need a change in contractual hours? Will the job remain as ‘attractive’ with additional travel in rush hour built in?
What of those solicitors with child care responsibilities who can currently juggle them successfully as they are always at their ‘home court’? Extra travel at the beginning and the end of the working day will frustrate existing arrangements.
Firms and individuals will bear more costs for the same level of fees. If firms are no longer viable, what will be the effect on access to justice for those local to Chesterfield?
No doubt a new and confusing duty scheme will be imposed on the profession as well…
VHS Fletchers office, Chesterfield
And everybody else…
Nobody might notice the extra car on the road between Chesterfield and Derby every day but they will be there.
If expenses and travel are paid there will be the extra cost to the tax payer through the Legal Aid Agency.
Will the court be able to send people to prison? Will there be custody staff in the cells waiting for new arrivals? Will those sentenced to custody be placed on trust to wait to be taken away, or chained to radiators? (Both of the latter have been tried in the past at other local courts).
Ultimately a court closure will cost not only solicitors and their clients, but also the police and witnesses in terms of time and lost opportunities to use their time better.
Any closure will also provide witnesses with an opportunity to travel on the same bus or train to court that a defendant is having to catch.
Austerity over?
Despite announcements to the contrary it appears that there is little interest from government in properly funding the justice system.
Proposals like this that prioritise convenience to the court over the inconvenience and cost to every other ‘stakeholder’ simply show that the powers that be are not listening or interested in the knock on effects.
A formal consultation will no doubt follow the meeting, and that consultation will inevitably produce a number of responses from all of those involved that suggest, with evidence, that this is a bad idea. There is always a belief that these changes will then inevitably take place despite these contributions. This will be particularly true in this case where the court service have simply been unable to recruit adequate staff.
