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Nottingham based solicitor advocate Graham Heathcote was recently instructed by a client to appeal the imposition of a football banning order imposed at Nottingham Magistrates’ Court.

The History of the case

Our client appeared before the Nottingham Youth Court for assaulting a police office in the execution of his duty and assault occasioning actual bodily harm.

This followed an incident at the bar close to Notts County’s Meadow Lane ground.  This was prior to the County v Coventry League 2 match.

The bar had chosen not to exclude Coventry City supporters on that day.  An hour before the match the police were called to eject some Coventry fans who were being unruly and disruptive.   Door staff had been unable to cope with the hostile group in the bar, and a smoke bomb had been let off inside.

Police also entered the terrace area of the bar to eject a male who had been aggressive towards the officers themselves. He complied with a request to leave but our client had client pushed the officer and attempted to strike him.

During the struggle to arrest our client, the officer felt pain in his right finger.  It was subsequently found to be broken.

Our client had entered a guilty plea in the Youth Court and as it was his first conviction received a referral order.  Unfortunately the court also imposed a football banning order preventing him from attending football matches within the UK.

It did not appear, however, that this was a football related offence and as a result our client decided to appeal the decision to impose the football banning order to Nottingham Crown Court.

 Advice and representation at appeal

In order to impose a football banning order it must be shown that the criminal offence was “football related.” The argument in this case was that the incident was unconnected to football.  Instead it was an incident that arose  upon the police attempting to remove people from a bar.

Upon a close examination of the evidence it was clear that this argument had merit.  As a result, Graham Heathcote represented our client at appeal, instructed by litigator Freddie Sail.

The appeal was opposed by the prosecution. The prosecutor maintained, as they had in the Youth Court, that the criteria for a football banning order had been met.  As a result it had been properly imposed.

Football banning order removed

Having considered the evidence and Graham’s representations the Crown Court judge and Magistrates agreed.  The appeal was successful and the football banning order was removed.

Our client was obviously delighted and could continue to attend football matches unobstructed.

Contact one of our football law specialists

If you are arrested or know that the police wish to speak to you about a football related 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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Prior to his sacking, the former Defence Secretary Gavin Williamson suggested a 10-year time limit or Statute of Limitations on the prosecution of soldiers accused of murder during military engagement.

This proposal was in response to reports that British soldiers may face prosecution over deaths during the Northern Ireland troubles in the 1970s and 1980s.

So, what prosecution time limits currently apply in England and Wales?

Offences can be categorised into three groups:

• Summary only offences – offences that can only be tried in the magistrates’ court.
• Indictable offences (or either-way offences) – offences that may be tried either in the magistrates’ court or the crown court.
• Indictable only offences – offences that may only be tried in the crown court.

Summary Only Offences

In general, proceedings must be commenced within six months of the criminal act that is being complained of.

There are however many exceptions to this rule.  These exceptions in particular will apply to the following types of offence:

• welfare benefits
• regulatory crime
• animal cruelty
• immigration cases

They allow proceedings to be commenced much later, and in some cases as long as three years after the offence was committed, where certain conditions are met.

There is a great deal of case law concerning the calculation of time limits and it is common to see offences commenced in breach of the rules. When these breaches are identified this will bring the prosecution to a halt.

With the new Single Justice Procedure for road traffic, railway and other offences we can see an alarming number of cases being charged in breach of statutory time limits.

If you have any doubts then please check with us immediately.

All other cases

In relation to indictable and indictable only cases  the starting point is that there is no time limit in bringing the prosecution.

It is very common to see offences, particularly sexual offences, prosecuted a great many years after the events complained of.

Alleged historical sexual and other offences can create significant difficulties for defendants so many years after the alleged events.  It can, for example, make defences such as alibi all the more difficult to establish.

As time passes witness memory and recollection will fade.  False accounts can seem true.  Mistakes in memory will be made.  Important evidence can disappear.

The response of the Court of Appeal to these defence complaints is that they are a ‘matter for the jury’.  The trial judge can deal with them by directions to the jury as to the problems created.  A jury should only convict if it is sure.

What can the defence do?

Wherever possible we will look to explore other appropriate avenues at trial to redress the balance.

This may take the form of an application to exclude evidence.  Alternatively, in some cases, an application can be made to bring the case to a halt.  This is called ‘staying proceedings’.  To continue to allow the prosecution would amount to an ‘abuse of process’.

Is an abuse of process argument easy to win?

Unfortunately an abuse of process argument is notoriously difficult to win. This leads many to believe that they are therefore mostly pointless.  As a result, many won’t bother to make them at all.

This is not a strategy that we believe in, and we will always advance arguments where there is a prospect of success.

In Attorney-General’s Reference (No 1 of 1990) [1992] QB 630 the court held:

“Firstly, it is for the defence to prove, on the balance of probabilities, that the continuation of the proceedings would amount to an abuse of the process of the Court and should, therefore, be stayed.

Secondly, stays of proceedings in such circumstances should be the exception rather than the rule, and where the application for a stay is based on delay a stay should be an exception rather than the rule even if the stay could be said to be unjustifiable. Still more rarely should a stay be imposed in the absence of any fault on the part of the complainant. No stay should be imposed unless the defendant shows, on the balance of probabilities, that because of the delay he will suffer serious prejudice to the extent that no fair trial can be held.

The third proposition of law that seems to me to arise from the authorities is that the judge considering an application to stay of this kind may have regard to his powers to exclude evidence, to give appropriate directions to the jury about the delay, and in particular to give directions to the jury about the difficulties which the delay has presented to the defence.

The fourth relevant proposition of law, as it seems to me, is that the judge may also take into account the extent to which a prosecution case depends on contemporaneous documents. The more it does so, the more difficult it will be for a defendant to establish that an indictment will be stayed.

Fifthly, where delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints about sexual abuse.”

A seemingly more liberal approach was taken in R (Flaherty) v City of Westminster Magistrates’ Court [2008] where a delay of 2 years due to the inactivity of the prosecution during enforcement proceedings was held to amount to an abuse of process.

Separately in Ali v CPS [2007] a delay of 7 years was sufficient to support a stay for abuse where documentary evidence pertinent to the complainant’s credibility had been lost.

Instruct a specialist in criminal law

We can begin to advise you as to the potential effect of delay in your case as early as in your interview with the police.  We cannot stress enough that our legal advice and representation is always free to you if you are interviewed.  This remains true whether you are under arrest or being interviewed voluntarily.

You can read about a case stopped for an abuse of process for a different reason here.

Our specialist criminal lawyers can advise you on whether you have a defence, and help you put that defence forward, which may be particularly difficult where a number of years have passed.  We will advise you on the prospects of success and instructing any experts that may 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.

The advantages of such early 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.

 You can find your nearest office here.

Alternatively you can use the contact form below:

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A recent news story about the Gosport War Memorial Hospital highlighted the importance of pharmacists and their regulated staff seeking independent legal advise if being interviewed by the police.

The Gosport War Memorial Hospital Inquiry

Kent and Essex Police have announced that they are re-opening their investigation into 465 deaths at the Gosport War Memorial Hospital.

The inquiry findings are being considered by the CPS and they will decide whether or not the police should instigate any investigation.

This decision following the inquiry highlights the very difficult position that pharmacists can find themselves in. The report reminds us of the case that involved Dr Harold Shipman which led to subsequent proceedings before the Royal Pharmaceutical Society by pharmacist Ghislaine Brant.

Questions raised about pharmacists’ actions

The media have been quick to raise questions as to the actions of the pharmacy staff at the Gosport War Memorial Hospital.  They have queried the role that they may have played in the dispensing and supply of the high level of painkillers apparently featuring in this case. The suggestion has been made that the pharmacists employed at the time showed little regard for the supply of controlled drugs to patients.

Whilst this is clearly a tragic situation, it should not be forgotten that pharmacists are professional people undertaking extremely important work on behalf of the community. They respond to prescriptions received from doctors and make judgements prior to their decision to dispense and supply medications based on the limited information before them.

Some years down the line it may be difficult to see what, if any, documentary evidence exists to help the pharmacist explain their actions at the time. This obviously makes matters more difficult for a pharmacist to defend.

In such circumstances legal advice will make a significant difference to the outcome of a case.

Free and Independent legal advice is available for pharmacists

Cases alleging criminal liability against pharmacists or their staff are always likely to be complex and require sensitivity as there will often have been a death.

Our specialist lawyers can advise you on the evidence in the case, whether you have a defence, and help you put that defence forward.  We will be able to advise you on the prospects of success and navigating a successful path through what can be a long and stressful investigation and court process. We will also be mindful of the potential regulatory impact of any adverse finding in your case.  We are able to provide you with advice in relation to such proceedings.

As a result, if you are a pharmacist and are arrested or know that the police wish to speak to you on a voluntary basis about any criminal offence then make sure you insist on your right to free and independent legal advice.

The advantages of such early legal advice in any case 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.

Please contact our regulatory defence expert Martin Hadley on 0115 9599550 or by email here.

Alternatively you can use the contact form below:

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Raising the issue of modern slavery – can it provide a defence to drug dealing and other criminal offences?

The short answer is: maybe.

Section 45 of the Modern Slavery Act 2015 provides a defence to specific criminal charges where it is shown that they were committed under a compulsion due to slavery or exploitation where a person is 18 or over, or as a direct consequence of slavery or exploitation where a suspect is under 18.

The latter test, for children, is less difficult to establish. It is a defence similar to duress.

This defence could, for example, be used for drugs offences committed as part of a ‘County Lines’ drugs ring.

What else is modern slavery a defence to?

The modern slavery defence can be used for any criminal offence not listed in Schedule 4 of the Modern Slavery Act 2015.

It can’t be used for serious crimes like

• murder
• manslaughter
• kidnapping
• piracy
• serious violence
• firearms offences
• robbery
• burglary
• arson
• criminal damage
• most sexual offences, or
• modern slavery offences themselves.

There are other offences to which the defence does not apply.

It can be used as a defence to any other crime. It is used for victims of ‘County Lines’ drugs offences but also applies to most immigration offences, minor assaults, shop thefts, or conspiracy to do any of these things. Anyone who is trafficked or exploited can potentially benefit from it.

Children may be exploited for a variety of reasons by gangs and used to carry and supply drugs. Children who are particularly vulnerable are often targeted, and they may feel that they can’t tell anyone in case they are arrested and punished.

What needs to be proved?

The defence requires several things, depending on a person’s age. In both cases, they need to be a victim of slavery or exploitation.

Those over 18 rely on s.45(1), where they are not guilty if:

1. The crime is committed because they are made to do it
2. They are made to do it for some reason connected to the slavery or exploitation
3. A reasonable person, with the same characteristics, would not have had a realistic alternative in that situation.

A person under 18 relies on s.45(4), where they are not guilty if:

1. The crime is committed as a result of the person being or having been in the past, a victim of slavery or exploitation, and
2. A reasonable person, with the same characteristics, would have done the same.

The defence for those under 18 is less difficult to establish, reflecting the increased vulnerability of children.

A person has to raise enough evidence for it to be possible that they are a victim of slavery of exploitation within the meaning of the Act. The prosecution will have to make the Magistrates’ or jury sure that the defence does not apply.

If they cannot, a person then has to show it’s possible that the offence was carried out either under a compulsion relevant to or as a direct consequence of that slavery or exploitation, dependant on the age of the defendant. This, again, will have to be disproved so that the tribunal is sure it  does not apply.

If the prosecution cannot disprove either of these things then the defence succeeds.

How can we help you present your defence?

Modern slavery 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.

We are experts at dealing with vulnerable clients and children, including many victims of exploitation by ‘County Lines’ drug gangs.

As a result, if you are arrested or know that the police wish to speak to you about a criminal offence and you wish to consider whether you have a defence, make sure you insist on your right to free and independent legal advice.

The advantages of such early 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.

 You can find your nearest office here.

Alternatively you can use the contact form below:

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New legislation was introduced in 2016 banning the production, sale, distribution and supply of psychoactive substances.

A review of the legislation took place earlier this year and the main findings are below.

Locally, however, it appears that such substances as ‘laughing gas’ or Nitrous Oxide remain a popular recreational drug and you can read more about a current campaign here.

What challenges have there been for the law?

There have been three main challenges.  These concern:

• the medicinal products exemption for nitrous oxide
• the psychoactivity of the same gas, and
• the psychoactivity of synthetic cannabinoids.

What was decided?

In each case, the Court held that the substances were subject to the provisions of the Act.

What enforcement has been taken?

There have been around 270 prosecutions under the Act.  About 170 sentences have been imposed and 332 retailers have been identified as the ceasing sale of psychoactive substances.

Police forces have recorded 1,481 arrests and seizures up to March 2017, so it is clear that the supply of the substances has not been eliminated.

Has the new law on psychoactive substances had any effect?

The main aim of the Act was to prevent the open sale of psychoactive substances, and this has largely been achieved. There has been a fall in the use of the substances and therefore a reduction in health-related harm.

There has been an increase in the supply by street dealers, an increased use in some prison populations and amongst the homeless and there is a continued development of new substances in an aim to avoid the legislation.

What are the penalties?

The maximum penalty for producing, supplying, possessing with intent to supply or importing psychoactive substance is seven years. The maximum penalty for possession of a psychoactive substance in a custodial setting is two years.

The Act also introduced a scale of civil sanctions:

• prohibition notices
• premises notices
• prohibition orders, and
• premises orders

Breach of the two orders is a criminal offence.

How can we help?

Various substances are banned under the Psychoactive Substances Act 2016.  Some are now controlled under the Misuse of Drugs Act 1971.

Stronger penalties are available under the Misuse of Drugs Act.  As a result it is essential to ensure that the correct legislation is being applied. We are experts in this area and can provide you with tailored advice.

As a result, if you are arrested or know that the police wish to speak to you about a criminal offence involving controlled drugs or psychoactive substances then make sure you insist on your right to free and independent legal advice.

The advantages of such early 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.

You can read about a case that we successfully defended where automatism was the issue here.

 You can find your nearest office here.

Alternatively you can use the contact form below: