In a dramatic climax the jury returned guilty verdicts in the case of R v Sally Metcalfe, the hapless Coronation Street Councillor caught up in fraud, money laundering and bribery.
As viewers will know, poor Sally appears to be a victim of Duncan’s cunning plan to divert blame elsewhere.
Her fate now lies in the hands of the trial judge, but a custodial sentence appears to be a real possibility.
But, what options does Sally Metcalfe have in relation to appeal?
Sally and her legal team must move quickly as an appeal against conviction must be lodged within 28 days of the verdict. An application to appeal can be made ‘out of time’ but there must be a good reason for any delay.
Since we can be rightly critical of her legal team, one of the first decisions may well be whether to instruct new solicitors and counsel to advise.
But whatever the decision made in respect to legal representation, it is important to note that appeals are not to be viewed as an automatic ‘second bite of the cherry’.
The Court of Appeal will only overturn a conviction if it is ‘unsafe’, so Sally’s legal team will need to identify something that went wrong in the trial process; if nothing did go wrong then an attempt at appeal would simply be futile, raising false hopes.
Sally’s best bet will be to continue the battle to clear her name in the hope of finding evidence that points towards Duncan and his framing of Sally.
This is referred to as ‘fresh evidence’ and must be genuinely new evidence that was not available to Sally and her lawyers at the time of trial.
Of course, the case of Sally Metcalfe isn’t real, and we can expect the scriptwriter to exercise some editorial licence when it comes to explaining the intricacies of the law, so don’t take too much notice of the legal wrangling as it inevitably unfolds in future episodes.
In the real world, a wrongful conviction is a most dreadful experience for both defendants and their families, exacting the cruellest toll.
How can we help in your case?
If you require advice in relation to any appeal matter it is imperative that you act quickly. Our team of experienced lawyers are here, ready to take you through the process.
A suspended sentence is a term of imprisonment that is suspended so that you do not go into custody immediately. Further, you will not go into custody if you comply with the conditions attached to the order.
Who can get a suspended sentence?
In the Magistrates’ Court, any sentence of 6 months’ imprisonment (12 months for two or more either-way offences) or less can be suspended. In the Crown Court, any sentence of 24 months or less can be suspended.
The minimum length of imprisonment for a suspended sentence is 14 days.
It follows, therefore, that if your offending is deserving of a sentence above the maximum level, or you are sentenced as a dangerous offender, you will not be able to receive a suspended sentence.
A suspended sentence is also not available for youths.
When can a sentence be suspended?
The sentencing court will first consider whether or not a custodial sentence should be imposed. In legal terms the court decides whether the “custody threshold” has been passed.
If custody of one of the lengths discussed above is imposed, the Court can then move on to decide whether it can be suspended or not.
In considering whether the sentence can be suspended the Court will look at the particular circumstances of the offence and offender and consider a sentencing guideline that applies to this scenario.
Factors to consider would be:
whether there is a realistic prospect of rehabilitation
strong personal mitigation
the impact of immediate custody on others.
Mitigating against a suspension would be that
the offender is a risk or danger to the public
the most appropriate punishment is immediate custody
a poor history of compliance with court orders.
How long can it be suspended for?
The sentence of imprisonment can be suspended for a period from six months up to two years. This is called the ‘operational period’.
What conditions may be imposed?
A sentence is suspended on condition that you do not commit any further offences during the operational period. In some circumstances an order may have that single condition.
Additionally, you can have a suspended sentence order that is subject to further requirements similar to this in a community order. This can include
unpaid work
a curfew
supervision with the Probation Service.
If you are subject to such an order, it is also suspended on condition that you comply with the requirements imposed.
What happens if I breach the order?
You can breach an order by either committing an offence within the operational period or failing to comply with any requirements that are imposed.
The starting point that will be adopted by the court if you are in breach of an order is to activate the period of imprisonment. The length of imprisonment may be reduced to reflect the level of compliance with the order and any of the requirements.
If it is unjust in the circumstances to activate the sentence then the court has other options. You may be
fined for the breach,
made subject to further or more onerous requirements
the operational period may be extended.
How can we help?
As well as advising you whether you might be able to receive a suspended sentence, we will also be able to help you put yourself in the best position for the court to treat you leniently.
This process can start as early as advice prior to a police interview under caution. As a result, if you are arrested or know that the police wish to speak to you about any offence then make sure you insist on your right to free and independent legal advice and ask for VHS Fletchers.
Restorative Justice, or ‘RJ’ as it is sometimes known, is a way of holding offenders to account and can be used as an alternative to a caution or conviction, or alongside a sentence.
What happens with Restorative Justice?
Restorative Justice gives a victim the opportunity to meet or communicate with an offender to help the offender understand the impact of the crime. It can also provide the offender with the chance to make amends.
This may be done in a face to face meeting or by way of a written apology. Alternatively the offender could make amends to the community rather than to the victim directly.
Communication takes place in a controlled environment, if the meeting is face to face. A facilitator will also be present. The meeting would centre on the harm caused and ways to repair that harm.
When can Restorative Justice be used?
For any kind of communication to take place the victim must be happy to participate. The offender will also have to have admitted the offence and be willing to take part.
Mrs Walmsley read a victim impact statement out in court to set out how the offence had affected her. She also said that she would like to sit down with the offender to discuss what he did because she believes that this may give her “closure”.
It may also assist the offender, and it is hoped in these circumstances that it would reduce the likelihood of any future offending.
Does it work?
Research undertaken by the government in a seven-year period found that there was an 85% victim satisfaction rate with the process following the use of restorative justice. There was a also a reduction in the frequency of re-offending of 14%.
How can we help?
Many decisions relating to whether Restorative Justice is an appropriate alternative to a police caution or prosecution will be made at the point of police interview under caution or shortly afterwards.
We offer free and independent legal advice at the police station or anywhere else where you may be interviewed by the police.
A number of benefits to seeking advice can be found here, but an important benefit is that we will be able to advise you as to whether restorative justice could be available in your case and make representations or negotiate with the police on your behalf.
Importation of Indecent or Obscene Articles – a Childlike Sex Doll?
There has been a surge of people charged with importation of indecent or obscene articles, contrary to the Customs and Excise Management Act 1979 and the Customs Consolidation Act 1876.
On the face of it that might seem strange. Why are people suddenly being arrested and sent to prison for an offence under a statute that is 141 years old?
A Gap in the Law?
The answer is that the Crown Prosecution Service are using the old offence to address a very modern gap in the law. The surge in cases follows a similar increase in seizures of childlike sex dolls. Border Force officers have seized 123 such objects since March 2016. This figure would increase if the number of seizures by police forces were also known.
Childlike sex doll seized by Cheshire Constabulary
The ‘gap in the law’ arises because it is not illegal to possess a childlike sex doll.
VHS Fletchers are no strangers to this development having also represented clients charged with an offence in similar circumstances.
The Law
The offence itself is contrary to section 50(3) Customs and Excise Management Act 1979. This states that it is an offence for a person to import any goods contrary to any prohibition, with the intention to evade that prohibition.
It is what is called an either-way offence, so can be dealt with in the Magistrates’ Court or the Crown Court. It carries a maximum sentence of seven years at the Crown Court.
Where does it say that a childlike sex doll is prohibited?
Section 42 of the Customs Consolidation Act 1876 says:
“The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom.”
The ‘table of prohibition’ is as follows:
“Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.”
It is for the Prosecution to prove that the Defendant either imported the item or was concerned in its importation.
In that case, lawyers for the defendant had argued the doll was not covered by the law. His Honour Judge James dismissed the argument, saying “any right-thinking person” would find the doll obscene. This decision may raise the interesting question of where we draw the line regarding obscenity. However, for the purposes of this specific offence (i.e. childlike sex dolls) it is difficulty to disagree with the Judge in that case.
The prosecution has issued some guidance on the considerations prior to bringing proceedings. These can be found here.
Sentencing Guidelines
There are no sentencing guidelines for this offence. The maximum sentence is seven years. The reported cases so far seem to be attracting sentences of around two years, although clearly each case must be judged on its individual facts.
Further Thoughts
As it stands, possession of a childlike sex doll on its own is not an offence. There must be proof of importation. If the item was manufactured or warehoused in the UK prior to purchase, the purchaser has not committed an offence.
Considering the level of press interest that this offence has now received, we might have expected Parliament to address this issue with legislation by now. Of course, other more pressing issues are tying up the time of Parliament.
This view raises a number of questions as to how it would be managed. If it is closely monitored, assists in the rehabilitation of an offender and prevents re-offending (much like the methadone example that she gives) it must be worth consideration.
On a final note…
It occurs that while possession of such an item is not illegal, a photograph of one could be. If the doll is, for example, photographed naked it could be argued that that photograph then constitutes a ‘pseudo’ indecent image of under the Protection Act 1978.
Contact an expert criminal solicitor for advice
VHS Fletchers is one of the few solicitors’ firms in the country who has the experience of representing a client charged with this offence.
The law is complicated and the potential consequences of a prosecution severe.
As a result, if you are arrested or know that the police wish to speak to you about an offence relating to the importation of an obscene article make sure you insist on your right to free and independent legal advice.
In legal shorthand we often refer to section 18 or 20 offences. These refer to specific offences under the Offences Against the Person Act 1861. They are offences that involve allegations of serious violence causing either Grievous Bodily Harm or Wounding.
What is the difference between section 18 and section 20?
The most serious form of assault, short of attempt murder, is an offence under Section 18 Offences Against the Person Act 1861. This involves the causing of either Grievous Bodily Harm (GBH) or Wounding intending to cause such a serious injury.
An offence involving intent under section 18 carries a maximum sentence of life imprisonment. The same offence committed without intent under section 20 has a maximum sentence of only five years.
As a result, the offence can be committed in different ways:
wounding with intent
causing GBH with intent
wounding without intent
causing GBH without intent
‘Unlawfully and Maliciously’
For an offence to be committed unlawfully and maliciously it means that there is no defence such as self-defence, force used for preventing crime or the defence of property or another.
There are also some other technical differences between the two offences.
What is Grievous Bodily Harm?
GBH or grievous bodily harm is really serious bodily harm. It will include include broken limbs for example but can also include psychiatric injury.
What is wounding?
Wounding is where the skin is broken, either internally or externally.
Section 18 – the intent offence
For the more serious offence intent to cause serious injury or wounding is required.
A jury needs to be satisfied that the offender intended to cause the harm. They will do so by considering all of the relevant circumstances, including what the offender did and what he said about it.
What about weapons?
The use of a weapon will make any offence more serious. Weapons include knives and bottles, or throwing acid. Where feet are used to kick somebody they are treated as a weapon. Biting will also be an aggravating feature in any case.
Section 20, the offence without intent
In such a case it is accepted that there was no intention to cause the injury. For example this might be the case involving a single punch that causes a person to fall backwards leading to a serious injury or wound.
A jury will be helped to decided on this issue by looking at evidence of the manner in which the assault was carried out or your behaviour at the time and afterwards.
What sentence will I get?
For an offence committed with intent it is almost inevitable that a term of imprisonment will be imposed. The guidelines range from 3 years for a less serious offence through to 16 years for the more serious offences.
Examples of sentences imposed are:
nine years when a bottle was used to strike the face requiring thirty stitches
nine years also imposed for causing a fractured arm with a baseball bat, knocking down and driving over a police officer, kicks to the head on the floor causing extensive facial fractures.
For offences under section 20 the maximum sentence is 5 years, so a non-custodial sentence is more likely. The guidelines range from a community order to 4 years imprisonment.
Instruct an expert criminal law solicitor to represent you
The difference in sentencing for the absence of intent means that this issue has to be considered carefully in the context of all of the evidence.
We can advise you whether intent and other offence elements can be proven, and the prospects, if appropriate, of a plea to the lesser offence being acceptable to the prosecution and the court.
The law is complicated and the potential consequences of a prosecution severe.
As a result, if you are arrested or know that the police wish to speak to you about an offence relating to grievous bodily harm or wounding then make sure you insist on your right to free and independent legal advice.
Prosecuting those who publish obscene articles is not prudish, despite what certain commentators would argue. It is an offence under section 2 of the Obscene Publications Act 1959.
The maximum sentence of five years’ imprisonment for offences involving obscene articles may be warranted for activities which have disturbing and harmful knock-on effects.
Laws of this type remind us that free-speech and expression is subject to lawful limitations.
The relevant legislation
According to section 1 of the 1959 Act, one must decide whether the effect of the object in question is:
“…such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”
An important line taken in the case law is that obscene articles must go beyond simply being rude or disgusting. The impact upon those who come into contact with and deal with the material is central to the question.
Defining the terms
In the case of Calder & Boyars Ltd from 1968, the court considered that the term ‘obscenity’ could encompass a wide range of misconduct.
The 1972 case of DPP v Whyte noted that while not everybody must be offended or influenced by the material the effect must be more than ‘minuscule’.
What does the term ‘article’ include? It can involve virtually anything capable of displaying some kind of information and/or broadcasting audio and video content. That description includes things which are not primarily made for these purposes.
The term ‘publish’ has been interpreted remarkably widely. For example, a single sale made by a developer of obscene photographs or creator of paedophilic writing to one customer can constitute publication. (Taylor [1995]; GS [2012]).
Additionally, the court decided in the case of Sheppard from 2010 that it was “fundamentally misconceived” to argue that ‘publication’ requires a ‘publishee’. It emphasised that this is a separate body of rules from libel law, so applying the same approach is wrong.
Expert evidence and obscene articles
While expert evidence is generally inadmissible in terms of what constitutes something obscene, it may be employed where the jury would otherwise not understand the effects of the obscenity upon a particular group (DPP v A & BC Chewing Gum Ltd [1968]).
What if you are investigated for this offence?
As you can see such offending is treated seriously by the courts so it will be important that you seek early advice from a criminal law solicitor. The law is also complex and will involve an exercise of expert judgement.
We assess the evidence on your behalf, advise you as to plea and can give you an indication of likely sentence if convicted. We will advise you as to whether any defences are available.
As a result, if you are arrested or know that the police wish to speak to you about an offence relating to obscene articles then make sure you insist on your right to free and independent legal advice.
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.
