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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.

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Crown Court Litigator and trainee solicitor Freddie Sail recently prepared a case for trial at Nottingham Crown Court for a client who faced two allegations of importing what were said to be child-like sex dolls into the UK.

The case shows that often written advocacy can be as important as what is said in court.

A gap in the law on child-like sex dolls?

There is an apparent gap in the law in relation to such items.  For example, it is not illegal to simply possess a child-like sex doll.  As a result, the prosecution choose to bring proceedings under section 50(3) Customs and Excise Management Act 1979 where the item has been brought into the country.

This states, simply, that it is an offence for a person to import any goods contrary to any prohibition with the intention to evade that prohibition.

The prohibition that catches child-like sex dolls is under section 42  Customs Consolidation Act 1876 which states:

“The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom.”

The ‘table of prohibition’ includes:

“Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.”

You can read more about this aspect of the law here.

New prosecution guidance on child-like sex dolls

Earlier this year, new guidance was issued about the evidence that would be needed to bring a successful prosecution and broader public interest consideration.  You can read more about this here.

Freddie saw that the guidance had been issued.  He took the opportunity to review his client’s case.  This was to see whether steps should be taken to ask the prosecution to look again at whether his client should be prosecuted.

His client denied from the outset the two crucial elements of the offence.  Fundamentally, he denied that the doll was representative of a child.  He had bought it as depicting an adult.  Secondly, he was unaware of any prohibition relating to the importation of child-like sex dolls in any event.

Written representations to the CPS

Having looked at the case together with the guidance Freddie wrote a persuasive letter to the Crown Prosecution Service, asking a lawyer to review the evidence.

In brief, he stressed the following factors:

• the prosecution was not in line with the new guidance
• ‘expert’ evidence in this case should not be relied upon
• there were sufficient features of the doll to mean that it was not ‘unquestionably’ a portrayal of a child
• a lack of evidence suggesting our client was aware of any prohibition
• the advertising of the items as ‘adult sexy dolls’

This communication with the prosecution was referred to by Freddie on the trial readiness form.

No evidence offered following the review

Freddie’s representation were successful.  The prosecution accepted that in the light of the new guidance the case should not be pursued to trial.  The matter was listed quickly and no evidence was offered.

Freddie’s client was overjoyed when the not guilty verdicts were announced.

Contact a criminal law specialist

If you are arrested or know that the police wish to speak to you about any offending arising out of the importation of a child-like sex doll or any other item make sure you insist on your right to free and independent legal advice.  The courts are always likely to 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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It is a nightmare scenario that potentially any parent could face. A child returns home, late at night, in an agitated state.

He hurriedly tells you that he has been in a fight, it wasn’t his fault, but someone has been hurt, badly. Further details are not forthcoming, but he thinks the police will be coming to arrest him. Thinking fast, and in order to protect your child, you take his clothes and put them in the wash.

Before you can even think of assembling an alibi for him, the police have kicked down the door and found your son cowering in his bedroom. He is naked, and there are no clothes in sight.

The experienced officer knows just what to do, rushing through to the kitchen and unplugging the washing machine. It will later be taken away so that the contents, including the water, can be forensically tested.

Unsurprisingly your son is arrested, but what fate awaits you?

 

Assisting an offender or perverting the course of justice

How this story ends depends on precisely what the police discover, but it is often proved that a terrified parent has acted to protect their child.

The act of putting those clothes in the washing machine or providing a false alibi amount to attempts to pervert the course of justice.

In other scenarios family or friends might provide some safe harbour for a person fleeing the police. Again, this is a serious criminal offence if done knowingly.

If convicted a prison sentence will inevitably follow, and another life will be shattered.  An example of such a case of assisting an offender can be found here.

We will investigate any potential defence for you

In some cases, there might be a viable defence.  You can be assured that we will find one if it exists. In other cases, the task is to mitigate by  telling the story from the parental perspective. What do you think you would do in this scenario? Or more to the point what would you do if it became a reality?

We might not like to think so, but any one of us could be caught up in a nightmare like this.

All manner of people can find themselves caught up in the justice system. We don’t see criminals, we see people, with their own unique set of circumstances.

Contact a solicitor who is a criminal law specialist

If you are arrested or know that the police wish to speak to you about any offending arising our of a criminal investigation such as assisting an offender or perverting the course of justice 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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In difficult financial circumstances, it might be tempting to consider purchasing counterfeit currency. While the price of such ‘money’ fluctuates widely, it is often as low as 25% of the face value.  As a result this may make it a tempting proposition.

State currency producers spend millions each year on devising and improving security safeguards.  The fact that counterfeit currency can still be passed off for real money reveals something of this hidden world of criminality.

To produce high-quality counterfeit currency requires an investment in expensive print technology.  As a result the people responsible for such enterprises are sophisticated and organised criminal gangs.  They will use fake money sales to finance illegal drugs, weapons and trafficking activities.

In addition to the threat that counterfeit currency poses to the broader economy, it is this link to organised crime that requires courts to pass deterrent sentences on those caught with the money.

The potential consequences of passing counterfeit currency

Non-custodial sentences are almost unheard of, even for the use of a single note or coin.

In Corcoran [2013] where a single £50 note was passed, a sentence of six months imprisonment was approved by the Court of Appeal following a guilty plea.

The defendant in Miller [2010] originally received two years imprisonment, but this was reduced to a sentence of 15 months.  Miller passed three counterfeit £20 notes and three more were found in his possession.

The Court of Appeal has stated:

“We observe, as other constitutions of this court have done on previous occasions, that in view of the potential harm to the United Kingdom economy an immediate custodial sentence would almost invariably be required in cases such as this. However, its term will depend upon the factual circumstances of the instant case. One of the most important factors will be the number of counterfeit notes involved, which will give some indication as to the proximity of the offender to the source of the notes.”

The maximum sentence for tendering counterfeit currency is ten years imprisonment.

For those involved in the production of notes or coins, severe sentences typically follow, and a court may also consider making a preventative order such as in the case of Karra and Karra [2015].

In the case of Crick [1981] the court observed:

“Coining is a serious offence. It was rightly treated as such by the learned judge, who correctly took the view that it called for an immediate custodial sentence. It must, however, be recognised that not all such offences are of the same gravity.

At one extreme is the professional forger, with carefully prepared plates, and elaborate machinery, who manufactures large quantities of bank notes and puts them into circulation. A long sentence of imprisonment is appropriate in such a case.

Here the offence is at the other end of the scale. The tools used to make the blanks were primitive, and were not acquired specially for the purpose; the techniques used were amateurish, and there was little real attempt to make the blanks a facsimile of a 50 pence piece. The coins were not, and could not have been, put into general circulation.”

Contact a criminal law solicitor

If you are arrested or know that the police wish to speak to you about any offending involving counterfeit currency 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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A District Judge sitting at Westminster Magistrates’ Court has authorised a summons to be issued against the prominent conservative member of parliament, Boris Johnson.  This follows a private prosecution brought before the court.

 

The allegations relate to alleged conduct during the Brexit referendum campaign.  In particular the prosecution relies upons the  ‘£350m per week for the NHS slogan’ that adorned the side of the Leave campaign buses.

Unless other steps are taken to the stop this prosecution, Johnson will have to appear in court to answer these charges and face trial at the crown court.

The full judgement can be found here.

Misconduct in public office?

The allegation faced by Johnson is one of misconduct in public office.  In order to be found guilty it must be proved that he was:

• a public officer acting as such
• who wilfully neglects to perform his duty/or wilfully misconducts himself
• to such a degree as to amount to an abuse of the public’s trust in the officeholder
• and does so without reasonable excuse or justification.

The issue identified early on by his legal team is that he was not acting in his position as MP or Mayor of London when he made the statements that are the subject of the prosecution.  The assertions were made during a contested political campaign and were therefore not sufficiently associated with either office.

Why is this unusual?

The unusual aspect of this case is that this is a private prosecution crowdfunded by individuals who support the prosecution.

How often is there a private prosecution?

In England and Wales, the vast majority of prosecutions are undertaken by the Crown Prosecution Service.   In addition there are also a large number of other public bodies that regularly prosecute cases.  These will usually be of a specialist nature.  These bodies include the Environment Agency, Serious Fraud Office, Local authorities and the Civil Aviation Authority etc.

There are also very few well-known organisations that regularly bring private prosecutions.  These include, most notably, the RSPCA in respect to allegations of animal cruelty.

Private individuals choosing to bring private prosecutions are relatively rare.

Are private prosecutions always allowed?

The Supreme Court has reiterated quite recently that private citizens have a constitutional right to prosecute alleged crimes before the courts.

Some companies and individuals’ resort to private prosecution when they feel that the State has failed to act.

There are many safeguards to prevent vexatious prosecutions, such as:

• Scrutiny before a summons is issued
• Abuse of Process remedies
• The ability of the Crown Prosecution Service to take over a private prosecution
• A new proposed code for private prosecutors drafted by specialist firms who conduct this type of work
• Risk of adverse costs orders if the prosecution is unwarranted

Despite these safeguards there are still some concerns.  We will be  particularly alert when a private prosecutor is involved to ensure that your rights as a defendant are protected.  Issues that will be particularly relevant will concern disclosure and fair prosecution practice.  We will not hesitate to seek full costs recovery on behalf of a client if the prosecution ought not to have been brought in the first place.

Seek advice from a specialist criminal solicitor

If you face court proceedings, whether a state or private prosecution, we can 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.