Category Archives: News

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:

Category Archives: News

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”?

Think very carefully before hiring someone legally unqualified to conduct your case. As Paul Wright recently found out, it can cost you dearly.

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

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.

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.

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.

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.

 You can find your nearest office here.

Alternatively you can use the contact form below:

Category Archives: News

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:

Category Archives: News

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!

The full judgement in this case can be found here.

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.

If you face court proceedings we can make a real difference to the outcome of your criminal 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:

Category Archives: News

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:

Category Archives: News

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.

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.”

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:

Thoughts from colleagues

Following news of Finbarr’s retirement, partner Jon Hullis said:

“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.”

Andy Siddall, partner, told Finbarr:

“Some people cannot be replaced.

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.”

Solicitor advocate William Bennett offered:

“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.”

A final thought is from partner Nick Walsh:

“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.

Category Archives: News

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:

Category Archives: News

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.

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.

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:

Category Archives: News

Senior Crown Court Litigator Lisa Sawyer based at our Nottingham office, helped achieve trial success after exploring a rather obscure and developing area of defence, sexsomnia.

Her client was charged with two counts of rape and multiple sexual assaults. He denied the offences, putting forward a defence of ‘sexsomnia’ or ‘sexual behaviour in sleep’.

Expert in Sexsomnia

The case involved Lisa instructing perhaps the leading expert in the field, Dr Chris Idzikowski BSc PhD CPsychol FBPsS.  He is President of the Sleep Medicine Section of the Royal Society of Medicine and Director of the Sleep Assessment and Advisory Service.

The area of sleep research and sleep medicine that relate to sexsomnia have only evolved recently, and as a result there are no generally accepted methods to investigate whether sleep-related behaviours have lead to criminal charges.  The preparation of this case involved the client as an inpatient for two nights for a study of his sleep patterns.  The expert was then able to consider:

• whether the client was capable of involuntary behaviour during sleep
• to review the behaviour alleged and see whether it could have occurred whilst the person was asleep.

Research has shown that many forms of sexual behaviour can occur whilst an individual is asleep.  Generally the behaviour is simple and rarely includes more complex acts such as intercourse.  In this case the client was said to have committed a rape.

For a proper opinion to be given evidence has to be gained from a number of additional sources – usually historical, such as from a partner, previous partners, friend and relatives.  The key witnesses, however, were the client and his then partner.

Favourable conclusion

Dr Idzikowski was able to conclude that the client had a predisposition to involuntary behaviour during sleep, and that factors existing in the client’s personal life at the time may well have led to the behaviour.  The partner being present was a sufficient trigger for the behaviour, and the timing and behaviour was consistent with ‘parasomniac behaviour’, behaviour whilst asleep, or sexsomnia.

The Crown Prosecution Service attempted to counter this expert evidence with its own doctor flown in from America to give evidence.

Specialist advocacy from independent counsel

Following careful handling of the case by specialist advocate Gary Summer of 9 Bedford Row  the client was found not guilty.

The quality of representation may be of particular importance in rape cases as recent research has shown that many jurors have decided on guilt before they reach the retiring room.

Representation under the Crown Court legal aid

The client had the additional benefit of being in receipt of legal aid which meant that ultimately, because he was successful at trial, the preparation and representation was free of charge to him.  This was of particular importance as the expert fees necessary to prepare the case in his behalf were considerable.

Contact a criminal defence specialist

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.

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 more about the issue of automatism here.

 You can find your nearest office here.

Alternatively you can use the contact form below:

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Category Archives: News

We all know that fly-tipping is an offence, but did you know you commit an offence if you pass waste to someone who isn’t licensed?

What is meant by ‘waste’?

This article is referring to household waste.  For example, this may mean excess rubbish that does not fit in your general collection bins.

How could I commit an offence of fly-tipping?

You have a ‘duty of care’ to take all measures reasonable in the circumstances to ensure you only transfer waste to an ‘authorised’ person.  Please note that if a trades person working at your house produces waste, they are responsible for the removal and disposal.

Most offences of fly-tipping are committed by someone paid to take the waste away rather than the person who produced the waste.  This means that you commit an offence if the person you ask to take the waste away is not licensed to do so and then illegally disposes of it.

What is an authorised person?

This is usually the local authority collection service, a registered waste carrier or an operator of a registered site. You can check if a person is licensed on the Environment Agency Website.

What could happen to me?

The government is introducing a fixed penalty notice for breaches of the household duty of care in relation to fly-tipping.

Currently, you could be offered a caution, warning or be prosecuted for failing to comply with your duty of care. The new penalty notice system provides an alternative to a prosecution.

The penalty will range from £150 to £400.  The minimum discounted penalty available will be £120. The penalty is set deliberately at a high rate as otherwise it may still be cheaper to use an illegal waste collector.  It is intended to act as a deterrent and is therefore set at a rate that is higher than the cost of legitimate disposal.

The guidance produced by the government for local councils states that householders should not be fined for minor breaches and consideration should be given as to whether it is proportionate and in the public interest to issue a notice to a person who is classed as vulnerable.

What if I do not pay the penalty?

If you chose not to pay the penalty you can be prosecuted for the offence through the courts. The typical fine imposed at court is likely to be significantly higher than the penalty notice.

When will the law be brought in?

The law to introduce the penalty is expected to be in force early this year.

How can we help?

If you are invited to attend an interview with any prosecuting agency, such as a local authority, you can have a solicitor present.  Dependent upon your means, that advice and assistance may be free of charge to you under the Legal Help scheme.

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: