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During the Conservative leadership campaign, a question on many people’s lips will have been ‘Why hasn’t the former Justice Secretary been arrested?’  This follows his admissions to using cocaine on several occasions earlier in his career.

So, could he face the legal consequences of this?

Cocaine is a Class A drug.  This is the most serious category.  Drug offences are governed by the Misuse of Drugs Act 1971.  Whilst buying a controlled drug in this scenario is not an offence, possession is. It carries up to seven years in prison.

Is Michael Gove’s confession enough?

Possibly.

The Prosecution will usually have to prove that a substance is in fact a controlled drug.  The most convenient way to do that is through a forensic report which analyses the substance.

In this case, though, the drugs are long gone and can’t be analysed. The prosecution would have to rely on his public confession.

A confession was relied on in R v Chatwood [1980] 1 All ER 467 where the Court of Appeal said that a confession could amount to evidence that, on the face of it, the defendant had been in possession where he was expressing an informed opinion.

Whether Michael Gove’s opinion could be described as ‘informed’ would be the key question.  This is likely to depend on how often he used the drug.

His confession could be used as evidence, however, if he were to be charged with attempted possession under the Criminal Attempts Act 1981.

The prosecution could accept that Gove did not actually possess cocaine but allege instead that he had tried to possess it. The maximum sentence is the same.

Has it been too long to charge Gove with a drugs offence?

No.

There is no general ‘Statute of Limitations’ in England and Wales.

Offences only triable in the Magistrates’ Court usually have a limit of six months, but possession of a drug is not one of those.  You can read more about the law here.

He could, theoretically, still be charged.

Will Michael Gove be prosecuted?

The Crown Prosecution Service would make a decision as to whether a prosecution should proceed.

To do this, they apply the Full Code Test set out in the Code for Crown Prosecutors. This is the same for every offence.

The Full Code Test has two stages which need to be met. These are the

• evidential stage, and the
• public interest stage.

In short, there needs to be enough evidence for a realistic chance of conviction.  It must then be in the public interest to bring a case. If a case fails either test, it will not be prosecuted.

The importance of his admissions

The confession is potentially enough evidence for a case to be brought. A Crown Prosecutor would have to be satisfied that it, and any other evidence, is admissible and leads to a realistic prospect of conviction.

Any evidence from Owen Bennett, the City AM political journalist who outed Gove’s cocaine use in his unauthorised biography of the Environment Secretary, or Gove’s political advisors to whom he confessed would need to be carefully considered, and a prosecutor may have grave doubts as to its admissibility.

In the event there was enough evidence, the case would also have to pass the public interest stage. A case will usually pass this stage unless there are factors against the prosecution that outweigh those in favour.

This stage takes into account a lot of factors, including the seriousness of the offence, the circumstances, any harm caused, impact on any victims, and whether a prosecution is proportionate.

The likely penalty would be a small fine or community punishment at most.  After all this time it may be that a discharge would be deemed appropriate.

As a result, although Gove could be prosecuted, it is unlikely that he will be in all of the circumstances. Reputationally and politically, this admission could exact a great cost, but it is unlikely to end up in court.

Contact a specialist criminal lawyer

This case illustrates the effect that a careless admission could have on a person’s character and career.  Of course, such admissions will have a far more serious impact if made to the police.

As a result, you should always take our advice prior to any police interview, whether as a volunteer or under arrest.

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.  There are circumstances, for example, where admissions made might not be admissable in court proceedings.

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 offences.

Alternatively you can contact us using the form below.

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Recently, the high profile prosecution of ex-police officer David Duckenfield relating to the Hillsborough tragedy ended without reaching a conclusion. A number of papers reported that there was a hung jury.  So, what does that mean?

In an ideal world, a jury will reach a clear conclusion by either convicting or acquitting the defendant.

Where a case retains the original 12 jurors at least 10 must agree on the verdict.  If the numbers fall short, for example, with 8 wanting to acquit and 4 wanting to convict, that will not be an acceptable verdict.

If the jury indicates that they will not be able to reach a verdict in accordance with the law then then that jury will need to be discharged.

In legal terms, this is often referred to as a hung jury.

What happens if there is a hung jury?

The prosecution can apply to have the defendant tried again.  This will be the outcome in most cases.

The decision is one for the trial Judge who will consider whether or not it is in the interests of justice for a retrial to take place.

Typically, the court considers questions which include (but are not limited to) whether:

• the alleged offence is sufficiently serious to justify a retrial
• if re-convicted, the appellant would be likely to serve a significant period or further period in custody
• the appellant’s age and health
• the wishes of the victim of the alleged offence.

If prosecutorial misconduct is alleged then other factors will come into play, analogous with whether it is an abuse of process to allow a retrial.

In most cases, the defence will not be able to properly resist the application.  We would, however, always carefully consider all relevant factors and object if able to.

What happens if a second jury still cannot reach a verdict?

The usual practice in this scenario is for the prosecution to offer no evidence, although there are rare circumstances where a further retrial could take place.

Contact an expert in Crown Court representation

We are specialists in Crown Court litigation and advocacy.  You can read about how we prepare for such serious cases here.

Legal aid is likely to be available for defending a Crown Court case.

Here are some of the cases that we have dealt with recently:

Successful defence of a serious robbery in the home.

Successful challenge of expert evidence in drugs case.

Abuse of process in paedophile hunter case.

We have offices across the East Midlands.  From those we provide nationwide advice and representation.

You can find your nearest office here.

Alternatively you can use the contact form below:

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In a case earlier this year His Honour Judge Jeremy Richardson QC was faced with the task of sentencing 3 offenders for their part in causing death by dangerous driving of 4 people, and seriously injuring 3 others. The main offender Elliot Bower received a total prison sentence of 11 1/2 years.

Maximum sentence of 14 years for offence

The offence of causing death by dangerous driving carries a maximum prison sentence of 14 years, but what happens if 4 deaths are caused during a single incident?  Does the total rise to a maximum of 56 years?

The answer to that question is no, the maximum remains at 14 years.

There is nothing wrong in principle with consecutive prison sentences.  Had the defendants committed 4 offences over 4 days, causing one death on each occasion, the theoretical maximum open to the Judge would actually have been 56 years, or 4 times 14 years.

So, why was it not possible in this case?

Consecutive sentences not possible

The Judge was obliged to follow the case of R v Jaynesh Chadusama [2018] EWCA Crim 2867 which led to the Judge observing:

“I am compelled to take 14 years imprisonment as the maximum sentence open to me where multiple fatalities arise from a single incident of dangerous driving.”

The Judge did, however, have the following to say, which indicated his general unease as to the state of the law:

“Before passing sentence, I wish to make this observation. It is my intention to refer these sentencing remarks to the Secretary of State for Transport. I am aware that HM Government has embarked upon a review of extant road traffic legislation including sentencing. It is not for me to recommend changes in the law. I simply invite those who have that responsibility, namely the Secretary of State, to consider the following point.

It may be worthy of consideration whether a court, when there are multiple deaths arising from a single episode of dangerous driving, particularly when the dangerous driving is of an exceptionally serious kind – as in this case, should have power to impose a higher level of custodial sentence than would be permitted by the current law.

I merely call this case to the attention of the Secretary of State for consideration.

It is not for me to make this observation, but there may be some who feel that Parliament may wish to revisit the issue of the powers available to a court when sentencing in an exceptionally serious case of this kind.

I repeat what I said earlier – the sentence I pass today is governed by the law which is operational today. I am bound by that law and I shall pass sentence in accordance with it.”

Will the law change?

The Attorney General in the days following this case indicated that a change in sentencing policy is likely. This will be more easily achieved not by trying to reverse the rule in R v Jaynesh Chadusama  but by simply increasing the maximum penalty available to one of life imprisonment.

It is also likely that we will see increases in sentences where death is caused by driving, and perhaps even in the relatively new offence covering the causing of serious injury.

Contact an expert road traffic law solicitor

If you are arrested or know that the police wish to speak to you about any offending involving dangerous driving then make sure you insist on your right to free and independent legal advice.  As you can see, the courts will always take such offences seriously upon conviction.

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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Many people face very lengthy court proceedings, and it is therefore hardly unusual that on occasion a person may not be too ill to attend court.

Despite this fact, courts are sceptical of alleged illness.  Unless the rules are followed in close detail, a defendant who does not attend faces the serious prospect of being arrested by the police and taken to court in custody. This may involve a stay in police cells over the weekend, so it is essential that you understand what you need to do.

Too ill to attend court? Let us know straight away.

The first step is to inform your solicitor as soon as you are able.

All of our office numbers can be called at any hour of the day or night.  This will allow you to contact us before the office opens so that you can inform us what is happening.

In almost all cases, if you do not need to see a doctor, the court is unlikely to accept your illness as an excuse not to attend court.

It will, of course, depend on the exact circumstances.  As a result it is essential to speak to us and obtain advice as to what is the best course of action.

A doctor will be able to issue you with a sick note.  This is not, however, necessarily the end of the matter, and the opinion of a doctor does not bind a court.

Doctors have been issued with guidance concerning medical notes for court non-attendance, but a busy practitioner may very well miss the detail.

The Criminal Practice Direction sets out the following minimum requirements:

• The date on which the medical practitioner examined you;
• The exact nature of your ailments;
• If it is not self-evident, why the ailment prevents you attending court;
• An indication as to when you are likely to be able to attend court, or a date when the current certificate expires.

Circumstances where the court may find a medical certificate unsatisfactory include:

• Where the certificate indicates that the defendant is unfit to attend work (rather than to attend court);
• Where the nature of the defendant’s ailment (e.g. a broken arm) does not appear to be capable of preventing his attendance at court;
• Where the defendant is certified as suffering from stress/anxiety/depression and there is no indication of the defendant recovering within a realistic timescale.

Contact your criminal law solicitor

You will have information from us about who your solicitor is.  All of our office numbers will be answered out of hours to deal with emergencies like this.

If you are not sure, you can find your nearest office here.

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Few people would disagree with the suggestion that sentencing law in England and Wales is a complete mess. The provisions that govern how a defendant is to be sentenced are both complex and disparate and to be found across a significant number of statutes.  The proposal is to replace the variety of provisions with a new sentencing code.

Why does this matter?

Research has shown that thousands of sentencing errors are made each year.  Many end up going completely undetected. Sometimes the mistakes make little difference in practice, but often the failure leads to unlawful sentences being imposed.

The complexity of the statutory provisions is only one consideration.  There is also a large body of case law that mjust be taken into account. Again, we see many errors, most notably concerning protective orders where conditions imposed are often draconian and unnecessary.

Sentencing errors can lead to a failure to protect victims as well as unlawful or inappropriate sentences for defendants.  Any appeal proceedings that follow to put matters right will be costly.  Ironically the Court of Appeal often makes mistakes itself.

So, what is being proposed?

The Law Commission has proposed a ‘Sentencing Code’.  This will be a single Act of Parliament that will place all sentencing provisions in one place.

To achieve this, a two-stage process will take place:

1. Minor amendments to existing statutes will be made to ‘tidy up’ the statute book.
2. Immediately afterwards the provisions will be consolidated into one Act of Parliament (‘the sweep’).

This clean sweep of law will then lead to a single consolidated statutory provision resulting in a sentencing code that can be further amended in the future.

It is important to note that this procedure is a consolidating procedure  Apart from minor changes to legislation there will be no material change to existing law. There will be no increases to the existing sentences available to courts.

Will the sentencing code make a difference?

Given the effect of this is merely to move sentencing law into one single statute, it is a reasonable question to ask whether this will make a difference.

The Law Commission carried out extensive testing of the proposals.  It was demonstrated that having a single reference point for sentencing leads to fewer errors. Errors will continue to be made, for all manner of reasons, but we should see a massive reduction.

When will these changes happen?

The first piece of legislation was laid in the House of Lords last week, and the provisions could be law in a matter of months. Much will depend on the legislative timetable and the uncertainty of the political situation at the present time.

When the relevant legislation is enacted, there will need to be a period of training for lawyers and judges before the new statute takes effect so it seems unlikely that the provisions will come into effect before mid 2020 at the earliest.

What happens until then?

Until that time we will continue to be alert on your behalf.

Our lawyers take great care to ensure lawful and proportionate sentences are passed and will not hesitate to take corrective action where that is required.

We prefer to work hard to avoid mistakes in the first place to avoid problems later.  As a result all of our advocates are highly trained in the complexities of sentencing law. Our ethos is  that we must ‘get it right first-time’.

If, however, you believe that your sentence before either the Magistrates’ Court or Crown Court was unlawful or excessive then please contact us immediately.

Contact a specialist criminal lawyer

The earlier we are involved in your case, the greater the opportunity for us to ensure that everything goes right at each step of your case.

If you are arrested or know that the police wish to speak to you about a criminal 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.

This will allow us to make sure that you are doing the right thing by answering police questions or exercising your right to silence.

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.