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We are in the midst of a general election campaign, so it is perhaps not surprising that ‘law and order’ are featuring in the news as the main political parties fight for the popular vote.

While as a firm, we do not offer any party-political opinion, it is worthwhile taking a brief look at some of the recent announcements and scrutinise the reality of the pledges being made.

Child murder

The Conservatives propose that where a person aged at least 21 murders a child under 16 years of age the starting point should be a ‘whole life order’.  This means that they would never be eligible for parole.

The Criminal Justice Act 2003 already contains measures in this regard.  This is, on the face of it, a tightening up of those provisions. It is our assessment however, if enacted this provision is unlikely to impact on more than one or two cases each year.

Knife Crime

Knife crime remains high on the political agenda, and we have written about this topic in the recent past both here and here.

The Conservatives propose changes to stop and search powers with swift processing of those arrested before the courts.  Any changes to stop and search provisions are likely to prove controversial, and there are concerns about whether the current resourcing of the criminal justice system is sufficient to cope with any such radical new initiatives.

Policing

The conservatives have already announced the recruitment of 20,000 extra police officers.  Some observe that this will not actually replace the number of officer lost since 2010. Further, it is a fair assumption that if this target is reached, and all other things remain equal, more people will be arrested and brought before the courts. Again, some resource implications remain unaddressed in terms of court sitting days and prosecution resources.

The Liberal Democrats have pledged a further £300m for local policing.

Parole Board

The Conservatives have announced further changes to practice and procedure, to make the process more ‘victim-centric’ and transparent.

In addition the Conservatives propose raising the ‘victim surcharge’ by 25%.  However, the most recent stories show that such penalties are often remaining unpaid, particularly as they also apply to those serving long custodial sentences.

Is this a ‘Law and Order’ election?

The Conservatives have returned to a traditional ‘law and order’ theme, tough on crime and tough on the causes of crime. As well as punishment, there are promises of better prison rehabilitation schemes and more robust non-custodial options.

Other parties do not lead on this issue in quite the same way, but all promise better resourced public services, which inevitably includes policing.

Keeping a watching brief

Whatever laws the next government brings forward, we remain committed to ensuring that the proper rights and protections afforded to all those we represent are safeguarded.

We continue to be vigilant and ensure that any legislative developments that are brought forward do not infringe your fundamental rights and freedoms.

How can we help?

Aside from keeping you informed of developments in the law, we offer a full range of services to our clients in relation to criminal law.

If you are arrested or know that the police wish to speak to you about any offence then make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

Alternatively you can contact us using the form below.

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The prosecution, via the Attorney General, has the right to ask the Court of Appeal to consider whether sentences for certain offences are unduly lenient.

How does the scheme work?

Anyone can ask the Attorney General to consider whether a case has resulted in an unduly lenient sentence. If the Attorney agrees an appeal will be lodged within 28 days of that sentence and the court will consider the matter.

This scheme is essential protection against sentences that are too lenient.

We have previously posted about the scheme here.

Can it be used for any offence?

There is a list of offences that the unduly lenient sentence scheme applies to.  It is a relatively extensive list, but the government has announced that further offences are soon to be added to it.

How often are appeals lodged?

The Attorney General does not invite the court to interfere lightly.  Even though around 1,000 requests for a review are made each year only a fraction are referred to the court.  Typically between 100 and 150 sentences are increased each year.

In all cases where an appeal is heard, we will fight extremely hard to prevent any increase in sentence.

What offences are to be added to the list?

The following offences will be added:

• Abuse of position of trust: sexual activity with a child (s.16 Sexual Offences Act 2003),
• Abuse of position of trust: causing or inciting a child to engage in sexual activity (s.17 Sexual Offences Act 2003)
• Abuse of position of trust: sexual activity in the presence of a child (s.18 Sexual Offences Act 2003)
• Abuse of position of trust: causing a child to watch a sexual act (s.19 Sexual Offences Act 2003)
• Inciting a child family member to engage in sexual activity (s.26 Sexual Offences Act 2003)
• Sexual activity with a person with a mental disorder impeding choice (s.30 Sexual Offences Act 2003)
• Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity (s.31 Sexual Offences Act 2003)
• Engaging in sexual activity in the presence of a person with a mental disorder impeding choice (s.32 Sexual Offences Act 2003)
• Causing a person, with a mental disorder impeding choice, to watch a sexual act (s.33 Sexual Offences Act 2003)
• Possession of indecent photograph of a child (s.160 Criminal Justice Act 1988)
• Taking, possessing, distributing, publishing Indecent Photographs of Children (s.1 Protection of Children Act 1978)
• Harassment: putting people in fear of violence (s.4 Protection from Harassment Act 1997)
• Stalking involving fear of violence or serious alarm or distress (s.4A Protection from Harassment Act 1997)
• Controlling or Coercive Behaviour in an Intimate or Family Relationship (s.76 Serious Crime Act 2017).

How we can help

If you have instructed VHS Fletchers in your case after your sentencing we will give you immediate advice if we have concerns that there may be a complaint that you have received an unduly lenient sentence.  Unfortunately, the process is out of our hands however and we have no control over whether or not a reference is made.

In the event of an appeal, a great deal of work can be done on your behalf to prepare your case for this next stage.  Thorough preparation can make all the difference as to whether or not the court of appeal interferes with your sentence.

If you face an appeal on the basis that you received an unduly lenient sentence or are concerned about any aspect of criminal law or sentencing then do not hesitate to contact your nearest office to speak to a criminal law specialist.

Alternatively you can use the contact form below.

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There have been widespread reports in the press about spare courtroom capacity, with judicial sitting days at an all-time low. These reports correspond to our own experience.  For example, at Nottingham Crown Court it is expected that only 6 of the 9 court rooms will be open, and at Derby Crown Court only 3 of the 4.

When court delay is combined with significant delays in investigating and charging defendants to court, this can mean a very long period between the commission of any crime and sentencing.

As advocates, we are increasingly concerned with the effect of delay on the people we represent and can deploy several legal principles in an attempt to mitigate the sentence passed.

On occasion, this can work in our client’s favour.  It can either reduce the length of the overall sentence, allowing a custodial sentence to be suspended where it would not otherwise be or by justifying a non-custodial sentence in circumstances where custody would be the expected sentence.

We have recently represented clients facing serious charges who have received either a suspended sentence or a substantially reduced sentence specifically as a result of these delays.

What does the law say about delay and sentence?

In Prenga [2017] EWCA Crim 2149 the court held:

“We start by considering the nature and extent of the discretion to adjust otherwise lawful sentences where required to achieve justice. It is, in this regard, well established that a sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. The paradigm illustration flows out of the requirement in ECHR article 6 that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one.”

In Dyer v Watson; K v HM Advocate[2004] 1 A.C. 379; [2002] 3 W.L.R. 1488 Lord Bingham of Cornhill observed that in any case in which it was contended that article 6 was violated by virtue of delay the first step was to consider the period of time which had, in fact, elapsed.

Unless that period gave grounds for real concern it was almost certainly unnecessary to go further “… since the convention is directed not to departures from the ideal but to infringements of basic human rights”.

The threshold for proving a breach of the reasonable time requirement was a high one “not easily crossed”

In Mills (Kenneth Anthony) v HM Advocate (No.2) [2004] 1 A.C. 441 Lord Hope (at [54]) recognised that delay could in an appropriate case justify an adjustment to sentence. One possible rationale for this is the anxiety experienced by a defendant, resulting from the abnormal prolongation of proceedings.

Another possible explanation might be that a defendant’s life has changed during the period of delay such that the person who stands to be sentenced is, in terms of character, not the person who committed the offence.

In Attorney Generals Reference No.79 of 2009 [2010] EWCA Crim 338 it was held (per Hughes LJ VP at [19]) that delay:

“… is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly a conviction occurs.”

The judge, nonetheless, emphasised that applications for reductions in sentence would be “unusual”. The authorities relating to delay and article 6 demonstrate that unnecessary delay can amount to mitigation resulting in reduction of sentence but, also, that questions of delay are instances of “… the broader question of what a just sentence is”. It follows delay, whilst perhaps being a paradigm example, is not exhaustive of the categories of case in which a sentence might be mitigated in order to ensure overall justice.

In R. v Kerrigan (David Joseph) [2014] EWCA Crim 2348, the Court of Appeal was required to consider broad questions of justice in the context of custodial sentences ordered to be run consecutively to existing sentences.

In para [40] of the judgment the court set out seven principles which might apply where a court was imposing sentences for different offences and where they might apply concurrently or consecutively leading to potentially arbitrary results.

For present purposes the seventh principle is relevant and was formulated in the following way:

“a judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly”.

Instruct an expert criminal solicitor to help

Another aspects of the justice system that can cause delay will be the current system where a suspect is released under investigation.  You can read more about that here.

Information as to whether delay can prevent a prosecution being brought in the first place can be found here.

We will provide you with specialist advice and representation at every stage of a criminal investigation or prosecution.  In all cases we will ensure that the impact of any delay on your case is fully explored in order that this can be reflected during sentencing.

We have offices across the East Midlands and will happily travel across the country to provide representation for all criminal offences.

You can find your nearest office here.

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Many different terms are used to describe legal professionals:

• lawyers
• solicitors
• legal advisers
• attorneys (an Americanism), or
• a ‘brief’

There are countless others in common usage.

Unfortunately, these different terms can allow for some confusion.  When viewing many legal websites a potential client could be forgiven for thinking that they are dealing with a qualified legal professional.  The reality, however, might be that nothing could be further from the truth.

The distinction between a ‘real’ solicitor and anyone else is necessary.

As solicitors, we are highly qualified legal professionals.  We are regulated by the Solicitors Regulation Authority (‘SRA’) and admitted, and accredited, by the Law Society.

Crucially, we are obliged to have insurance in place.  This means that if anything does go wrong, our clients have full protection.  There is also adherence to the highest ethical standards.

When dealing with other lawyers employed and supervised by solicitors these same protections apply.

Ironically, it is not always the case that unregulated people charge less by way of fees.  As a result, clients can find that they not only receive an inferior service but it will often come at a higher price.

The title of “solicitor” is protected under section 21 of the Solicitors Act 1974:

“Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognised by law as qualified to act as a solicitor shall be guilty of an offence and liable on summary conviction to a fine not exceeding the fourth level on the standard scale.”

Section 20 of the same Act states:

“No unqualified person is to act as a solicitor.”

An offence under section 20 carries up to 2 years imprisonment, and custodial sentences are the norm, underlying the seriousness of the matter.

Some areas of legal advice are ‘reserved activities’.  This means that even if an ‘adviser’ is not pretending to be a solicitor, they are prohibited from acting in those matters.

 

The simple way around this confusion is always to check that you are dealing with a real solicitor.

You can check whether you are dealing with a real firm by using the SRA website.  You can also ensure that any site visited is the actual web address for the firm concerned.  The postal address, email and telephone numbers can also be checked.  The copying of real websites is another problem at the moment.

Follow this link to check whether you are dealing with a real solicitor.

How we can help

Instruct a real solicitor from VHS Fletchers if you require help in the following areas of law:

• police station advice
• Magistrates’ and Crown Court representation;
• appeals
• protest law
• motoring offences
• confiscation proceedings
• prison law
• regulatory and professional defence
• business defence
• environmental offences
• firearms law
• education law

You can find your nearest office here or use the contact form below.

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We all know that the use of mobile phones is banned whilst driving.

Or are they?

The answer, according to the High Court’s recent decision in Director of Public Prosecutions v Barreto, is that it depends what you’re doing with it.

What did Mr Barreto do?

Ramsey Barreto had been convicted in the Magistrates’ Court of using his mobile phone to film an accident while he was driving. The prosecution was under s41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986.

What do these laws say?

These provisions make it an offence to use ‘a hand-held mobile telephone or other hand-held interactive communication device.’

‘Interactive communication’ means ‘sending or receiving oral or written messages, sending or receiving facsimile documents, sending or receiving still or moving images, and providing access to the internet.’

How did Mr Barreto overturn his conviction?

Barreto appealed his conviction to the Crown Court. The Crown Court acquitted him on the basis that videoing on a phone did not come within the definition of the offence, because no interactive communication was taking place.

The Director of Public Prosecutions, head of the Crown Prosecution Service, appealed on that point of law to the High Court.

As the High Court pointed out, the Crown had assumed the legislation banned all mobile phone use. Mr Barreto said that was not the case.

What did the High Court say?

The High Court agreed with Mr Barreto and the Crown Court. He was allowed to go free without a stain on his character. The Court said:

“The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process).”

Does this mean you can play Candy Crush while you’re driving?

No, probably not. The High Court made the point in their concluding paragraphs, saying:

“It should not be thought that this is a green light for people to make films as they drive. As I have already said, driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving.”

There is also a related offence (although it carries fewer penalty points) of not being in control of a motor vehicle.

Once again, road traffic law has proved to be one of the trickiest areas of criminal work – don’t leave your licence to chance, ensure you use a firm that is fully up to date with all developing legal arguments.

Contact an expert motoring law solicitor

Your driving licence is likely to be extremely important to you, whether for work, family or social purposes.

As a result, you will only want to trust the preparation of your case to a specialist in mobile phone offences and road traffic offending.

You can read the detail of a case where we successfully defended a motorist for mobile phone offences here.

You can read more about our fixed fees for defending such cases here.

You can find your nearest office here or use the contact form below.