Chesterfield crime and motoring law solicitor Kevin Tomlinson
Chesterfield Crime Solicitor Kevin Tomlinson has a wealth of experience defending motoring law offences. He is known for his calm and unflappable approach which places clients at ease in what is often an alien environment for them. These qualities are demonstrated by this particular case.
Kevin was instructed by a client who was accused of drink driving. She had provided a specimen of breath showing that she was nearly three times the legal drink drive limit.
Investigation of a procedural irregularity
Our client was prepared to plead guilty to the offence and was seeking advice as to the likely penalty she would receive. Kevin, however, sought his client’s instructions on the full circumstances of the offending and began to check the evidence that the prosecution had.
While there was no doubt that Kevin’s client had drunk alcohol before driving, the level has to be above the legal limit to drive. in order to convict her of the offence, therefore, the prosecution had to show that the evidence of the breath specimen was reliable.
If you are investigated for drink driving and provide a sample of breath at the police station you will be given a print out of the reading provided by the machine.
In this case, the printout provided to our client showed that there had been an error. The layout of the paperwork appeared to be wrong. Kevin could not be sure that the breath test had been performed correctly.
At court Kevin spoke with the prosecutor to see if they had the same documentation as his client. The prosecutor did not. Their copy of the printout was correct. It appeared, for whatever reason, that our client’s version had been incorrectly printed.
Kevin then took the time to speak with his client again. It seemed clear that the machine had been working properly, bearing in mind his client’s instructions about how much she had had to drink and the prosecution copy of the printout. Further, the decision that she made on plea would be important as the starting point on sentence in her case was a twelve week custodial sentence due to the level of the reading.
Would she choose to try and take advantage of a potential loop hole and risk loss of mitigation and prison if she was found guilty?
Suspended sentence followed a guilty plea
Having taken further instructions, it was clear that our client wanted to plead guilty and not try to challenge the reliability of the machine.
Following her plea, Kevin was able to advance substantial personal mitigation on her behalf which is always more compelling if it follows a guilty plea. Kevin’s calm and measured approach persuaded the Magistrates that any sentence of imprisonment could be suspended. In addition to the suspended sentence she also receive the inevitable driving ban.
She was extremely relieved and pleased with the outcome.
Kevin Tomlinson is based at our Chesterfield office, but is able to provide nationwide advice and representation. If you wish to instruct Kevin then his contact details can be found here.
We will always advise you as to your entitlement to criminal legal aid to ensure your free representation in the Magistrates’ Court.
The Environment, Food and Rural Affairs Committee’s report Controlling Dangerous Dogs calls for a full-scale review of current dog control legislation and policy to better protect the public. The report was published on 17 October 2018.
Is there a problem with controlling dangerous dogs?
According to the Committee there is.
In 1991 the Dangerous Dogs Act outlawed certain breeds and types of dog to protect the public from attacks. Since then the number of yearly fatalities has continued to rise.
Hospital admissions for dog attacks have increased by 81% since 2005. An unacceptably high number of victims suffer horrific life-changing injuries in these incidents. Even where no physical injury occurs, dog aggression can cause significant psychological distress.
At the same time, too many harmless dogs are being destroyed every year because they are banned and cannot be re-homed, even if they are well tempered and pose no risk to the public.
The Government has maintained that the breed ban is essential to public safety, arguing that these prohibited dogs pose an inherent risk. This inquiry found insufficient evidence to substantiate this claim.
The Committee agrees with the Government that it would be irresponsible to amend the breed ban immediately without adequate safeguards, but ‘that does not mean that the Government should continue to sit on its hands.’
The report argues that changing the law on Breed Specific Legislation is desirable, achievable, and would better protect the public, and that ‘…the Government’s lack of action on this front shows a disregard for dog welfare.’
What action needs to be taken?
The report makes the following recommendations in relation to controlling dangerous dogs:
immediately remove the prohibition on transferring a banned dog if it has been behaviourally assessed by experts and found to be safe. This would prevent the needless destruction of friendly animals that could be safely re-homed;
commission an independent evidence review to establish whether the banned breeds or types present an inherently greater risk than any legal breed or cross breed;
commission a comprehensive review of existing dog control legislation and policy, with a view to developing an alternative model that focuses on prevention though education, early intervention, and consistently robust sanctions for offenders;
ensure all future strategies are developed with a full and transparent commitment to evidence-based policy-making. If the independent evidence review concludes there is insufficient evidence to support the Government’s position on Breed Specific Legislation, this aspect of the law should be revised;
introduce mandatory training and education courses for minor dog offences, similar to speed awareness courses for drivers;
support wider dog awareness training for schoolchildren, and run a targeted awareness campaign for dog owners and the general public on safe human-dog interaction;
increase support for local authorities and police forces to ensure they have the capacity to fulfil their duties; and
engage with international partners to learn lessons and best practice from abroad.
Will anything change as a result of this report?
It remains to be seen how if at all, the government will respond to this latest report.
Sentencing for dangerous dogs’ offences already results in severe sentences, but the focus here is more on trying to ensure that harm is not caused in the first place.
How we can assist?
Dog owners are often unfairly stigmatised and face severe punishment if found guilty of dangerous dog offences.
The legislation is extremely complex, but our solicitors have an in-depth knowledge of this area of law.
If you face investigation or prosecution it is important that you seek early advice.
A recent case involving activation of a suspended sentence nearly brought Chesterfield crime solicitor Denney Lau to tears. Despite having been qualified for 11 years and having represented any number of clients with many different circumstances before the court, this case was still able to cause distress.
Denney’ s client was appearing before the court in relation to breach of a suspended sentence order. The starting point for breaching such an order is that the suspended sentence term must be activated. It is possible to avoid this if the court can be satisfied that it would be unjust to do so in all of the circumstances. As a result, Denney’s client was very much at risk of a custodial sentence.
The breach information set out that although our client’s initial compliance had been good, after several months he had simply stopped attending the appointments. No explanation had been given. On the face of it, our client was guilty of a complete disregard of a court order and there was unlikely to be any argument to avoid a prison sentence.
However, upon further investigation, this view of the case could not be further from the truth.
Compelling personal circumstances to avoid activation of a suspended sentence
During private consultation Denney was able to learn the full circumstances of his client’s failure to keep to the terms of the order. His client had lost touch with the probation service following difficulties in his partner’s pregnancy.
During a routine scan, no heart beat had been detected. Attempts were made to induce the birth. Further complications arose and his partner had to undergo emergency surgery.
Although the baby was born, within two months our client was attending the funeral of his child. He struggled to cope with these life changing events and had made several attempts to take his own life.
He had sought medical help and mistakenly believed that all of the professionals involved with his family would have liaised with each other so that compliance under the probation order had been suspended. Unfortunately, the order does not work like that and it had continued.
Denney had to advise his client that despite his personal circumstances he was in breach of the suspended sentence order, Had he spoken with the probation service they may have been understanding of his circumstances, but he had not.
It appeared, however, that the information from the client provided compelling reasons for the court to permit the order to continue. The court agreed, having heard the mitigation, that it would be unjust to activate the suspended sentence.
The importance of instructing a criminal solicitor
This case illustrates the importance of instructing an expert criminal defence solicitor, whether you face activation of a suspended sentence or any other criminal offence.
Denney and his colleagues are used to hearing about people’s lives in great detail, whether that is by way of a police allegation or as part of a defence or mitigation. As a result, we are experts at gathering relevant information and will have heard very similar cases many times over the years. The horrific ordeal suffered by our client in this case still has the power to shock.
We were able to represent this client under the legal aid scheme. This means that our representation before the Magistrates’ Court was free of charge to him. This means that he was spared the ordeal of explaining deeply personal information to both the probation service and Magistrates.
Nottingham solicitor advocate Lauren Fisher recently represented a client before Lincoln Crown Court. He was jointly charged with another with a single allegation of robbery in a dwelling. Two other defendants were involved in the trial. One defendant had already pleaded guilty to his involvement in two robberies, and our client was jointly charged with one of those robberies.
This was in effect a re-trial, an earlier trial having been abandoned due to the prolonged bad weather.
Robbery in a dwelling house
The charge that affected Lauren’s client was one of robbery in a dwelling. The prosecution case was that he, along with the co-accused, had attended the house of the victim. A taser had been produced. Demands were then made that a large sum of money be transferred using internet banking. In the event only half the amount was transferred, but the victim was forced to contact the bank by telephone to authorise the transfer.
Afterwards, it was said that our client and the co-accused left the property together.
Lauren’s client accepted that he had been present at the incident. He had given his friend, the co-accused, a lift to the address and gone in because his friend did not know how long he would be. At not time had he seen a taser, or hear the noise of one being discharge. He did not know that money was to be stolen.
Once in the property the co-accused locked the door. Once he was locked in, our client was unable to leave. He took no part in the robbery and was as frightened as the victim of the offence.
The issues for trial
The important issues in the case were:
did our client know about the other robbery on the indictment that also involved this victim?
had he seen the taser at the point of entry?
could the prosecution establish that our client had knowledge of what was to happen before we entered the address?
had he participated in the offence at all?
The case involved careful cross examination of a witness who had been subject to two frightening robberies, in particular the second incident that we were charged with. It was not disputed that either robbery had taken place, just whether our client was involved in any way.
As it was a re-trial, part of the preparation involved listening to the earlier evidence recorded on the court DARTS system. This would allow cross examination on any inconsistencies between the statements and that evidence, and any evidence given at this trial.
Careful cross examination by solicitor advocate
Through cross examination Lauren was able to confirm that it would not have been inevitable that her client would have seen the taser. The victim was not sure at which point they had seen the taser. He also changed his account as to whether our client had left the house or not. He perhaps struggled, in the end, to point to anything that our client had done or challenge the suggestion that we were scared of what was going on. There were inconsistencies in his evidence that could not be explained.
A persuasive closing speech
Lauren had to approach her closing speech carefully. She did not suggest that the victim was lying. Instead, she highlighted that it was likely that the witness believed what he was saying, but was mistaken. Although he had been a victim of a crime, the nature of the incident meant that he was easily confused about the detail.
The jury was directed towards the burden and standard of proof and how that related to all the evidence that had been heard. Having heard all of the evidence and the speeches in the case, Lauren’s client was found not guilty.
This was fortunate for her client, as the starting point after trial for an offence of robbery in a dwelling house in circumstances such as these was thirteen years in prison.
Instruct VHS Fletchers in your Crown Court case
We use a combination of in-house solicitor advocates and barristers, as well as specialists from the independent bar, to ensure that you have the representation that you need for your Crown Court case.
We aim to provide continuity of representation with a litigator and advocate assigned to your case at an early stage.
As Bonfire Night approaches families will be looking forward to enjoying the displays. These might be in the garden or an organised display. While the night sky is brought alive by the vibrant explosions of noise and colour there remains. lurking in the background, a risk that failing to deal with fireworks safely and responsibly could bring an individual to the attention of the police and the courts. The issue of fireworks and the law can be complex, with regulations changing regularly.
It will be important that retailers who are thinking of supplying fireworks for the first time consider their obligations relating to fireworks and the law. They will need to ensure that they are sufficiently familiar with the complex rules that regulate the sale and possession of fireworks.
Contravention of the rules can result in substantial fines being imposed, or even a prison sentence.
One of our crime and regulatory experts Martin Hadley explains the law.
Classes of firework
There are four general classifications for fireworks:
Class 1 – Indoor fireworks
Class 2 – Garden fireworks
Class 3 – Display fireworks
Class 4 – Professional fireworks
Certain fireworks are banned entirely, such as mini-rockets, bangers, firecrackers, ‘jumping fireworks’ and air bombs.
There are also fireworks referred to as ‘adult fireworks’, which are subject to a local authority licensing regime.
Importation of Fireworks
It is a criminal offence to import fireworks unless notice of the fact is given to HM Customs and Excise, and details of the importer’s name and address where fireworks will be kept.
Given the sizeable market in illegal and unsafe imported fireworks, it is always wise only to purchase from established, recognised retailers.
Sale of Fireworks
Retailers must display specified signage warning that it is illegal to sell fireworks to those under 18 years. This prohibition extends to sparklers. Retailers should have robust training procedures in place to ensure that store staff know how to recognise under-age purchasers, and challenge as to age in appropriate cases.
There are licensing restrictions on the supply of adult fireworks.
You can only buy fireworks (including sparklers) from registered sellers for private use on these dates:
15 October to 10 November
26 to 31 December
3 days before Diwali and Chinese New Year
At other times you can only buy fireworks from licensed shops.
Possession of Fireworks
It is an offence for a person under 18 years to possess most fireworks in a public place. There are limited exceptions for those employed in the business of firework displays and other relevant occupations.
The possession of category four fireworks is prohibited save for those employed in the business of firework displays and other relevant occupations.
Weight and time limits apply to how much of each type you can store at home before you need to register your storage or apply for a licence.
If you are buying just selection boxes and sparklers from the supermarket, small quantities of fireworks in general or are buying your fireworks a day or two before you let them off, you do not normally need to worry about storage laws as they would not apply.
Night-time Restrictions
With certain exceptions for particular notable days of the year, the use of adult fireworks is not permitted during the hours of 11 pm – 7 am.
Again, there are specific exemptions:
November 5th – You can let fireworks off until midnight.
New Year’s Eve – You can let fireworks off until 1am.
Diwali – You can let fireworks off until 1am.
Chinese New Year – You can let fireworks off until 1am
Noise Levels
Category 3 fireworks are restricted to a sound impulse sound pressure level of 120 decibels. It is an offence to supply any firework that contravenes this restriction.
Public Order, arson, violent and Other Offences
Fireworks are dangerous incendiary devices and in the wrong hands can cause serious injury to persons, animals and property. Many of these offences carry substantial criminal penalties.
Transporting fireworks
Fireworks are explosives and cannot be sent through the post. This also applies to sparklers. Fireworks can only be shipped using an explosives courier and must be clearly marked as such.
Contact a criminal law specialist
Bonfire Night is a time for fun but can land the unwary in hot water with the police.
A person can be fined up to £5,000 and imprisoned for up to 6 months for selling or using fireworks illegally. You could also get an on-the-spot fine of £90.
Separate offences can be convicted if fireworks are used to cause a nuisance.
Nottingham crime and regulatory solicitor Martin Hadley
Justice Week is a new initiative setup by the three legal professional bodies; the Law Society, the Bar Council and the Chartered Institute of Legal Executives (CILEx).
The purpose of the week is to boost the profile of justice and the rule of law, helping to place them at the centre stage of public and political debate.
With many parts of the system at breaking point, now is the time to make a strong and clear case for why they are so fundamental to our society, economy and democracy.
Justice Week will launch a week-long programme of research, public events, and digital content, bringing together media, politicians, industry, the third sector and the general public.
Justice Week aims to:
promote the value of justice and the rule of law to audiences beyond the legal community to inspire and activate those who have not been a part of conversations on justice or listened to by decision-makers
build public support for core campaigns on access to justice and the rule of law
increase public understanding of the role of government in the administration of justice and how the legal profession supports the justice system.
demonstrate to decision-makers that the impact of justice policy is widely felt and understood, and that a wide range of communities and constituents can articulate their concerns and demands
highlight the work undertaken every day by individual legal practitioners – particularly that work which is undertaken pro bono – to improve access to justice and the rule of law
When is it Justice Week taking place?
In 2018, Justice Week will run between Monday 29 October and Friday 2 November.
Pro Bono
National Pro Bono Week (NPBW) was conceived in 2001 by the then Attorney General and the Attorney General’s Committee to recognise the contribution that legal professionals make, free-of-charge, to people and organisations in need of legal advice and representation who would otherwise be unable to afford it. It was run and funded by the three professional bodies.
Building on the achievements of National Pro Bono Week, Justice Week will celebrate the pro bono work of legal professionals and support, guide and encourage those who or are looking to undertake pro bono work for the first time.
The Law Society, Bar Council and CILEx continue to support the pro bono sector with:
Guide to pro bono support
Funding for events
Providing publicity on initiatives and areas of concern
Providing events and support during Global Pro Bono Week
What can we do?
The Law Society’s Richard Miller
Richard Miller, head of the Justice Team at the Law Centre, commented:
“If we want to win the arguments about justice, we have to get smarter at explaining to people what it means in relation to their day to day lives, and why they should care as deeply as we do that access to justice in this country is under threat, as Supreme Court Justice Lord Wilson said in September 2018.
There is no one approach that will engage people. But there are reasons why people, whatever drives them, should care about access to justice.”
We are always trying to increase the awareness of the services provided by this firm and others within the criminal justice system.
For example, we have published a series of posts about the advantages of taking advantage of free and independent legal advice at the police station.
Hopefully articles such as this can make small changes over time in the public perception of criminal legal aid lawyers.
Discuss your case with a solicitor specialising in crime
If you know that the police wish to speak to you, or have been interviewed, or face court proceedings, then please speak with one of our criminal solicitors.
“As a charity, our purpose is to enhance patient experience which in turn reflects the ethos of Royal Papworth Hospital and its staff, who work tirelessly to give patients the best quality of care. To ensure this standard of care continues to be offered, the Charity looks to not only support current services and care for patients but also proactively look to the future and support innovations that will help to tackle the growing prevalence of cardiothoracic diseases and conditions, thus in turn helping the local and in some cases national healthcare economy.”
Denney’s aim is to raise enough money for a pace maker that will make a real difference to the life of the recipient.
Personal motivation for taking on the challenge
Denney will be taking his position at the start of the 2019 London Marathon in memory of his father Tom Lau who passed away 10 years ago.
His father had suffered a major heart attack and was rushed to his local hospital before being rushed to the Papworth specialist hospital.
The hospital never gave up on the treatment of Denney’s dad and was able to prolong his life by fitting a secondary external artificial heart and was able to spend the following months at home with family.
Denney says that as a result of this treatment:
“I was able to make many happy memories with my father, including introducing him to my now wife, attending our engagement party and he saw me qualify as a solicitor, and in our new home.”
Unfortunately, the family knew without a transplant his dad was on borrowed time, and his heart eventually gave out a year later.
At the time of his father’s death, Denney is the first to admit that he himself was overweight and unfit. He has been able to turn his grief into a positive motivation to become fit and start running. This London Marathon will be the culmination of that program.
Chesterfield crime solicitor Denney Lau
Running the 2019 London Marathon
Denney says this about his motivation to raise money while running the 2019 London Marathon:
“I really hope that we can raise enough together to literally save one person’s life, or even to extend someone’s life even for a short period so happy memories can be made.”
Since the change in the rules relating to police bail a postal requisition has, in many cases, replaced a formal police charge in bringing a defendant to court.
What is a postal requisition?
A postal requisition is a summons to court, telling a defendant what they have been charged with. It will also contain the date and time that you must attend a particular Magistrates’ Court.
They will be used in cases where the police do not seek bail conditions. They will be appropriate where there is no language or communication problems and there is a known fixed address for the defendant.
When will I receive one?
Although a postal requisition will be used in motoring offences in a similar way that a summons would have been issued, they are also used for a wide range of criminal offences including the most serious.
As a result, if you have been interviewed by the police as either a volunteer or while under arrest and been released under investigation the first thing you hear about the outcome of the investigation might be the postal requisition.
Unfortunately, the timing of the requisition will be hard to predict. It could be received within weeks of a police interview, or months afterwards.
What happens if I don’t attend court?
If you fail to attend court in answer to the postal requisition then it is likely that a warrant without bail will be issued for your immediate arrest. This means that the police will arrest and detain you at a police station in order to bring you before the next available sitting Magistrates’ Court. This could be on a Saturday or Bank Holiday and you could spend many hours in custody.
Bearing in mind the possible delay in sending the requisition it is extremely important that you check your post regularly and keep the police informed of any change of address to avoid an unnecessary arrest.
A helpful reminder outside our Chesterfield office
If we have provided you with free and independent legal advice in your police interview then we will make regular contact with the police to ensure that you know what is happening with the investigation. We will be able to keep the police informed on your behalf of any changes of address. We will also be able to tell you when the investigation has been concluded and if you are likely to have to go to court.
Even if we have not advised you in interview, please feel free to contact us afterwards. We will be able to advise you on the likelihood of further interviews, and provide the same service to you as we would to those who we represented in interview.
What should I do if I receive a postal requisition?
Hopefully you will have already taken advantage of our free and independent legal advice at the police station so in those circumstances simply contact the lawyer at this firm who dealt with your case.
We will be able to provide you with advice as to the availability of criminal legal aid or discuss private funding with you. We will also be able to make a request for the papers in your case prior to the first hearing and begin to take instructions and advise you as to plea.
VHS Fletchers offices across the East Midlands
This will ensure that you have representation at this all important first hearing and will have investigated any defence that you might wish to put forward.
Chesterfield partner and crime solicitor David Gittins
Where possible, VHS Fletchers is a solicitors’ firm committed to encouraging those interested in joining the legal profession. We welcome law students who are keen to find out what it is really like to be a criminal defence solicitor and legal aid lawyer.
Work placements can be hard to come by, but if you are local to one of our East Midlands offices then please contact us to see if we have space at one of them at a mutually convenient time.
VHS Fletchers are also keen to encourage those interested in joining the legal profession and welcome law students keen to find out what it is really like to be a Criminal Defence Solicitor. Work placements can be hard to come by so for those unable to secure a placement below is a description of Chesterfield partner and Crime Solicitor David Gittins typical week.
Monday
David was in the office early meeting Natalie the work placement student to show her the sort of work undertaken by a legal aid lawyer. They then walked over to Chesterfield Magistrates’ Court to represent a client who in the end failed to attend.
As a result, there was a lengthy wait before a warrant was issued, but David was able to use the time preparing for a later appointment to take instructions in relation to an upcoming trial.
It appears that the tone had been set for the day, and that client failed to keep his appointment.
David also undertook some preparation for his second appointment of the day. This again related to a forthcoming trial at Chesterfield Magistrates’ Court.
This was a particularly important appointment as the trial was listed before the court for a prosecution application to let the Magistrates’ know about his client’s previous convictions. David had hoped to discuss the convictions in detail to help him know how best to argue against the application.
This final client of the day also failed to attend his appointment.
Tuesday (day)
David was at Chesterfield Magistrates Court again on Tuesday. This time he was acting as court duty solicitor. This means that he would act as a legal aid lawyer for those defendants who hadn’t instructed a specific solicitor to act for them.
When David attended court he would not know the type of cases that he would be dealing with. In the end he represented two clients who had attended on bail and one in the cells.
He returned to court in the afternoon to complete all of the cases, including the representation of one defendant who had pleaded guilty to drink driving.
In between cases, David was able to discuss a case for the following day that needed the input of a consultant psychiatrist due to his client having difficulties with his mental health.
At the end of the normal working day, David saw a new client at the office who had been recommended to him. He was able to take instructions and submit a legal aid application online.
Tuesday (night)
That night David was on call as one of the lawyers staffing the firm’s out of hours police station rota to provide emergency advice and assistance to those being interviewed under caution by the police.
Although it would no doubt be preferable to interview suspects during normal working hours, the police often think it appropriate to interview at any hour of the night.
Although legal aid lawyer David only represented a single suspect during this period he travelled to Chesterfield police station at 8.45pm to represent his client who was accused of assault.
Free advice was provided and the client was released under investigation whilst the Police continued to investigate the offence.
David returned home shortly before 1 am but had to be back at his desk the following morning to complete that day’s work.
Chesterfield police station
Wednesday (day)
David returned to Court on Wednesday morning to successfully resist the bad character application being made by the prosecution.
He also represented the client with mental health difficulties in their absence as they were not well enough to attend court. The case was adjourned to a future date.
On returning to the office David also spoke to the client that he had represented in the police station the previous night. Although we do not carry out family work he was able to signpost her to a family solicitor who could help with the issues arising following her arrest and release.
David returned to Chesterfield Magistrates’ Court for the afternoon session. He represented a client who was to be sentenced for a theft allegation. Unfortunately, due to the delays at court, this case was not called on until 4.30pm despite a bail time of 1.45pm.
Wednesday (night)
David was again involved with our out of hours rota. He was the coordinator for the scheme, which meant that he took the emergency calls from the Duty Solicitor Call Centre, police and clients or their families resulting from arrests.
Whilst David can complete this task from home with the use of his mobile phone, calls continue throughout the night. David deployed his colleagues to the police station at 9.30pm and a little after midnight.
A spare room is always helpful when coordinating the rota.
Thursday
David, suffering from a lack of sleep, was back at Chesterfield Magistrates’ Court at 9.30am to represent a client who had previously pleaded guilty to assaulting his partner. David successfully argued for a community order.
The rest of the day was spent by David completing work arising from cases he had dealt with that week and preparing files for future court dates.
Friday
David was again court duty solicitor at Chesterfield Magistrates’ Court. He dealt with a client who faced an allegation of unlawful possession of a firearm.
Saturday
Magistrates’ Courts across the country also sit on a Saturday morning to deal with defendants who have been refused bail by the police. Again we provide representation at these courts as part of our out of hours emergency rota.
David was represented two clients before Nottingham Magistrates’ Court. The first client faced a very serious allegation of possession with intent to supply cannabis as part of an organised crime gang. This client was remanded into custody having insufficient community ties to ensure attendance at future court dates for such a serious offence. David was assisted by a Lithuanian interpreter in this case.
The second case was at the other end of the spectrum in terms of seriousness, although it was serious to his client. David’s other client was simply charged with shop theft. However, what should have been a simple matter was delayed by the police as the client was not brought through to the cells until his methadone could be located, leading to a wait of several hours.
A legal aid lawyer will only gain the experience necessary to provide expert advice in the field of criminal law by being part of a busy practise. We can offer that experience.
We look forward to hearing from you with either your request for work experience or application to be a trainee solicitor.
Category Archives: News
The simple answer is no, you do not have to give the police your phone PIN.
There are, however, potential consequences in certain circumstances if you refuse.
When can the police ask for your phone PIN?
It is arguable that the police could ask you whenever they wanted for your phone PIN, you can always say no. The critical issue is whether they can take further action if you say no.
When can they take this further action?
Section 49 of the Regulation of Investigatory Powers Act 2000 contains the relevant power.
If your phone has been seized, or in circumstances where police have the power to inspect it, the police can give you notice that they require you to provide the phone PIN or “encryption key” to allow them access. The same applies to other devices such as computers.
Written permission must be obtained from a Judge or a District Judge for the giving of a notice under section 49, this then provides “appropriate permission”.
The person with “appropriate permission” requesting the information must believe, on reasonable grounds:
that the key or PIN is in your possession;
that the notice is necessary for the grounds listed below, or it is necessary for the purpose of securing the effective exercise or proper performance by any public authority of any statutory power or duty
the notice is proportionate; and
that it is not reasonably practicable for the person to obtain possession of the protected information without the giving of a notice.
A notice is ‘necessary’ if it is necessary:
in the interests of national security;
for the purpose of preventing or detecting crime or
it is in the interests of the economic well-being of the UK.
What would “notice” be?
A notice has to be
in writing (or otherwise recorded)
set out the protected information to which it relates
set out the grounds for requiring it
specify the office, rank or position of the person giving it
specify the office, rank or position of the person granting permission for it to be given
specify the time by which the notice is to be complied with
set out what disclosure is required and how it is to be provided.
What is concerning is that people are very often given documents that leave the impression that giving the phone PIN is compulsory, when in fact they are mere requests not authorised by any higher body.
As a result you should always seek the advice of a specialist criminal solicitor before complying with any request.
What if I do not know the PIN or still don’t want to give it?
If you do not comply with a properly given notice, you can be prosecuted. If you know the information required and refuse to provide it, you can be sentenced to a maximum of 2 years imprisonment or 5 years imprisonment for an offence involving national security or child indecency.
If you genuinely do not know the information you can put this forward as a defence to the offence.
The legislation says that a person will be taken as not being in possession of a key (or PIN) if “sufficient evidence of that fact is adduced to raise an issue with respect to it and the contrary is not proved beyond a reasonable doubt”.
What sentences have been given?
Andrew Garner failed to comply with a notice, he said that he had forgotten the PIN but was found guilty and given eighteen months imprisonment.
Tajan Spaulding pleaded guilty after refusing to provide the PIN for his iPhones and was given eight months imprisonment.
Stephen Nicholson was given 14 months imprisonment for failing to provide his Facebook password to the police during the investigation into the murder of Lucy McHugh.
How can we help?
People have been to prison for not providing the PIN for their phone, The consequences can be severe. This article can only ever be a simple overview of the power.
We can advise you whether the notice is lawfully made and whether the request is made in appropriate circumstances. We will advise you whether you have a defence that can be put forward in court.
Our client was prepared to plead guilty to the offence and was seeking advice as to the likely penalty she would receive. Kevin, however, sought his client’s instructions on the full circumstances of the offending and began to check the evidence that the prosecution had.
Kevin then took the time to speak with his client again. It seemed clear that the machine had been working properly, bearing in mind his client’s instructions about how much she had had to drink and the prosecution copy of the printout. Further, the decision that she made on plea would be important as the starting point on sentence in her case was a twelve week custodial sentence due to the level of the reading.
