We have previously posted articles about our clients who have been unfortunate enough to be charged with allegations of possession of disguised weapons that, on conviction, will attract a minimum 5 year sentence. This is often a surprise to the client, and we have had to work particularly hard to avoid an immediate prison sentence.
Examples involving disguised weapons can be found here and here.
New guidance has been issued by the prosecution as to when it is appropriate to charge the offence that attracts the minimum 5 year sentence.
It had been hoped that this change would have assisted those found in possession of a combination torch and stun gun. Unfortunately, this is not the case. The charging standards have only been relaxed where, for example, as stun gun has been disguised as another weapon.
The charging guidance now contains the following:
Note on Disguised Weapons
“Firearms which are disguised as another object (such as stun guns disguised as torches or mobile phones or other innocent objects) are prohibited weapons contrary to section 5(1)(b) and 5(1A)(a). The latter attracts a mandatory minimum sentence; the former does not.
Where a stun gun is disguised as another weapon, prosecutors should always charge section 5(1)(b) unless any significant aggravating feature, as identified by R v Avis [1988] 1 Cr App R 420 CA is present. The factors in Avis are:
• What (if any) use has been made of the firearm?
• With what intention (if any) did the defendant possess or use the firearm?
• What is the defendant’s record?
Unless a significant aggravating feature is present, the mandatory minimum sentence may be arbitrary and disproportionate. Where section 5(1)(b) is charged, the Court may still pass a significant sentence. However, it can exercise its discretion at sentence where there is an absence of aggravating features which do not merit charging an offence attracting a mandatory minimum sentence.
[Additionally] Prosecutors should note that where a stun gun is disguised as another weapon, section 5(1)(b) should be charged, absent any use or intended use of the stun gun, or the commission or alleged commission at the same time or recently of other relevant offences’”.
“…The fact that the disguised stun gun in question is of limited power is not a reason for charging the lesser offence – R v McCarthy [2013] EWCA Crim. 2500.”
Note on dual purpose objects
Prosecutors should be alert to the defence contention that an object has a dual purpose and, therefore, is not a disguised firearm.
Where a case involves a dual purpose object (for example, a combined torch and stun gun), unless it is immediately apparent that an object contains a firearm, then it is a disguised weapon and should be charged as such, (section 5(1A) Firearms Act 1968). Failure to do so would deprive the judge of all available sentencing options, including the minimum sentence.
Prosecutors should liaise with the officer in connection with a defendant’s basis of plea in all cases involving objects described as ‘dual purpose’.
The charging standards make clear that there can be flexibility in whether a charge attracting a minimum sentence is brought by the prosecution. Experience of negotiating on offence and plea is an important skill that we are able to bring to your case.
As a result it is best to take advantage of our free and independent legal advice in police interview as it is easier for us to make a difference in your case if instructed at an early stage.
Even in cases where you haven’t instructed us in the police station, we will still be happy to receive your instructions after interview or if the case proceeds to court.
Again, legal aid is likely to be available for your court case and we will advise you fully about all of your funding options.
Imagine the unimaginable – you have been convicted of a crime that you didn’t commit!
Your trial lawyers have told you that there is no hope of an appeal. You can’t afford more legal advice from a criminal law specialist so you decide to look for a cheaper alternative.
McKenzie friends – cheaper and just as effective?
Surely there must be someone who can help? Perhaps that friend from university who studied law? Or someone who’s website says they are “cheaper than a solicitor or barrister, but just as effective”?
Mr Wright was injured in 2004 when three plastic bags were left inside him during an operation. He hired a “McKenzie Friend”, George Rusz, to support him during his claim. He ended up with only £20,000 in damages from the NHS.
To make matters worse he had to pay £75,000 in costs to the NHS because of the incompetent way Mr Rusz had conducted the case. This meant that despite winning he had to pay out £55,000.
Fortunately, Mr Wright recovered those costs and the damages he should have received had his case been dealt with properly after he sued Mr Rusz for giving negligent advice. He was awarded £336,759 in total. This finally came fifteen years after his injuries.
There is a risk that he may be out of pocket a lot longer. If Mr Rusz can’t, or won’t, pay it could be years before he sees the money, if ever.
The consequences of poor and unregulated advice
The Court of Appeal
If you were to use a McKenzie Friend, or any unqualified person, in conducting a criminal appeal the consequences might be worse than a financial loss. The Court of Appeal has the power to order, in appeals without merit, that some time already served should not count towards your sentence. You may also face a hefty claim for prosecution costs.
McKenzie Friends may have a legitimate and useful purpose when they stick to their original purpose and role – providing moral support, taking notes, and giving advice in court – and do it competently.
Before instructing a person to assist with your case you will want to ensure that they are properly regulated and insured to avoid the problems created for Mr Wright. If in doubt, check it out.
Choose to instruct a specialist in criminal law and proceedings
A common misconception that may drive potential clients towards the use of McKenzie friends is publicity about legal costs and the availability of legal aid.
VHS Fletchers – Specialist criminal solicitors
We cannot stress enough that our legal advice and representation is always free to you if you are interviewed by the police. This remains true whether you are under arrest or having a voluntary interview.
Our specialist criminal lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.
As a result, 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.
In a case involving an advice on appeal from the Crown Court legal aid may be available to provide initial advice and take the matter forward where there are arguable grounds.
In criminal practice and procedure, you might think that the humble adjournment is a relatively simple and straightforward matter, but you would be wrong.
A little like buses, they are never available when you want one. However, when you don’t want a case delayed the court always appears happy to work against you.
In reality, the humble adjournment is now a complex process, and only a mastery of the relevant principles will ensure the best outcome for your case.
The wise advocate is armed with a detailed chronology and will be ready to deploy this information without notice on an unsuspecting opponent. All relevant facts will have been gathered and a detailed submission will ensure the best prospects of success.
On occasion, it will be down to a client to assist. If for example, you cannot attend court due to illness or another unexpected matter arising, your solicitors will ensure that you are aware of the detailed information that needs to be provided.
The case law in relation to adjournments is well known, or at least ought to be. In Crown Prosecution Service v Picton, the High Court detailed the factors that a court ought to focus on:
A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.
Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.
Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.
Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.
In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.
The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise, if the party opposing the adjournment has been at fault, that will favour an adjournment.
The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why.
Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court’s duty is to do justice between the parties in the circumstances as they have arisen.
What could possibly go wrong with a simple adjournment?
In a recent case of Pari-Jones v Crown Prosecution Service the following facts emerged:
‘On the morning of the trial, the legal adviser to the Magistrates’ Court received two emails from the defence solicitor, which were written in Welsh and were translated and presented to the court. The first email was sent at 9.23am. The solicitor stated that he was acting for the defendant and that she was a lady approaching 80 years old. It was the first listing for trial, and the criminal damage related to a neighbour dispute.
The magistrates were told that the defendant was very concerned regarding the weather, because it was freezing around her house and the road, and she had no electricity. She was living by herself with no close family. The solicitor further wrote that he was stuck in his home, which was in Pwllheli, and that it was freezing hard. He said he was a distance away from the main road, which had been gritted, and although he could leave his house, he was not feeling comfortable in venturing out.’
Almost unbelievably the court refused the defence adjournment and the defendant was convicted in her absence. The magistrates’ admitted to having considered no case law at all!
So, what seems to be an unanswerable request for a simple adjournment, in the wrong hands, can go terribly wrong. That is why we train all of our advocates to never take an application for granted and ensure the best advocacy is always deployed on your behalf.
How we can assist
We have a team of highly trained and dedicated solicitors. Unfortunately you’ll see from the facts of the case set out above that the Magistrates don’t always do what to the bystander should be obvious.
Thursday 31 January 2019 was a notable date for the Nottingham legal community as local defence practitioner Finbarr Hennessy retired from practice.
Keeping a low profile
Although having spoken of a wish to retire for some time, his boundless enthusiasm for the job and wish to continue to provide representation for his longstanding client base meant that he continued to delay the inevitable.
In typical fashion, Finbarr sought to keep a low profile, and sought to avoid the (usually) inevitable collection, cards and farewell do. This he managed successfully.
Nottingham Magistrates’ Court
Some thoughts on the changes to the job
Finbarr offered some thoughts on his departure from a job that he still loved:
“It seemed weird walking out of Nottingham Magistrates’ Court this afternoon after spending 23 years of my life in that building.
Video killed the radio star. Technology killed this out-dated solicitor.”
He confessed that he had “struggled since the day that speedy summary justice was introduced at the Magistrates’ Courts”, offering the view that “justice has gone out of the window to be replaced by “progress” and statistics. To get an adjournment is harder than keeping somebody out of prison.”
Additionally he identified that his “lack of technical expertise means that I am now less efficient than I was in 1995.”
Finbarr’s intention had been to ‘go out with a bang’, perhaps collapsing when bail was refused by the Magistrates or when a client had been wrongly sent to prison. Unfortunately for him “I have had good results recently, so my blood pressure has remained stable.”
His final assessment was “We are all replaceable. I only work 14 hours a week and I know that my position will easily be covered.”
Nottingham Bridewell police station
No doubt his clients will beg to differ, and will recognise the lengths that he went to on their behalf. Clients and their families had his mobile number and he was effectively on call 24 hours a day, 7 days a week. If families were distressed by the situation that, particularly, youth clients had found themselves in he would visit families at home in his spare time to try and help.
Client feedback on Finbarr Hennessy
Finbarr was described in glowing terms by any number of clients – ‘The solicitor I have is very good at his job’, ‘A1 Service thank you’ and ‘Finbarr Hennessy is an excellent solicitor and needs no improvement’.
It was all the more pleasing to note that following his move to VHS Fletchers when Campion & Co solicitors stopped undertaking criminal work, his clients still found their way to us and continued to receive the high level of service that they would expect.
Here a Crown prosecutor offers an opinion on his integrity:
“You will always be very fondly remembered by everyone who has had the pleasure to work with you, as well as everyone at court, and especially your clients. You are genuinely the nicest person, and this is proved by the fact that even the police like you.”
Your dedication and commitment to your clients should be something all young Solicitors (and indeed some older ones) aspire to. In this dull digital age you will be greatly missed and never forgotten.”
“You are and always were a diamond. I wish you weren’t retiring but as you are I wish you well. Rest assured your position will never be “easily covered”. It is hard to cover one of life’s true one-offs. I am grateful to have worked with you.”
“Your gift is that you care about people and your colleagues and clients will miss you because of it. Enjoy retirement, it is truly well deserved.”
We will try to continue to provide Finbarr’s clients with the standard of service that they have come to expect, although they will agree that he is irreplaceable.
Nottingham Crown Court
All posts by Andrew Wesley/h3>
Sleep walking and automatism
Imagine waking up one morning and the horror of the night before quickly unfolds.
Blue lights and uniformed police officers greet you, search your house and find your girlfriend dead in the bathroom.
You have no memory of anything happening overnight, and she was alive and well when you went to sleep.
You are arrested and while riding in the back of the police car, can only think that you must have done it while asleep. It sounds almost comical that this could actually be a viable defence, but the reality is that it could well be.
Are you guilty?
Sleepwalking is most often used as a defence to violent or sexual offences (often referred to as ‘Sexsomnia’) and is a legitimate defence to both.
It falls under the defence of automatism, which is further broken into two types. Which type of automatism will depend on the cause:
internal (insane automatism), or
external (simple automatism).
Both of these mean you didn’t act knowingly but acted automatically and without the intention to commit the crime.
It is likely that if this state was brought about as a result of self-induced intoxication, the defence will not be available according to Finegan v Heywood The Times, May 10 2000.
Insanity or non-insane automatism?
Insane automatism is a more difficult defence to put forward. It requires the defence to prove that it is more likely than not the explanation for the offence. The rules to be followed are those set out in the M’Naghten case. The defence also needs to be supported by medical evidence of an internal cause.
Simple automatism, on the other hand, requires the defence only to provide enough evidence to make the issue “live”, in other words to make it a realistic possibility that you acted unknowingly.
Expert evidence will probably be required in both cases:
“I do not doubt that there are genuine cases of automatism, but I do not see how the layman can safely attempt, without the help of some medical or scientific evidence, to distinguish the genuine from the fraudulent” (Hill v Baxter (1958) 1 Q.B. 277, 42 Cr. App. R. 51).
The prosecution will then have to disprove it so that the jury can be sure you acted knowingly.
There is some legal debate in other jurisdictions concerning the class in which sleepwalking might fall, but the courts in England and Wales are yet to grapple with this. This is perhaps just as well, as the law is complicated enough as it is.
The Court of Appeal
What are the outcomes?
Non-insane automatism, if accepted, will lead to a simple acquittal: not guilty.
Insane automatism is slightly trickier and results in a special verdict: not guilty by reason of insanity. The sentencing options available to a judge are then limited to an absolute discharge, a supervision order, or a hospital order.
Instruct an expert in criminal defence
Sleepwalking cases are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.
As a result, 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.
Prosecutors should be alert to the defence contention that an object has a dual purpose and, therefore, is not a disguised firearm.
The charging standards make clear that there can be flexibility in whether a charge attracting a minimum sentence is brought by the prosecution. Experience of negotiating on offence and plea is an important skill that we are able to bring to your case.
