Category Archives: News

The government has published an Offensive Weapons Bill.  The legislation is designed to signal a more stringent approach to the possession of weapons and liquids that can be used to cause harm, such as corrosive substances.

The Offensive Weapons Bill forms part of the government’s response to the recent rise in serious violence, set out in the £40m Serious Violence Strategy.  This places a new focus on early intervention alongside robust law enforcement.

What is proposed in the Offensive Weapons Bill?

The following provisions feature in the bill:

• a new criminal offence of selling – both online and offline – a corrosive product to a person under the age of 18. The substances and concentration levels of what constitutes a corrosive product are set out in the Bill.
• a new criminal offence of possessing a corrosive substance in a public place. There is a defence of possessing the corrosive substance for a good reason. There is a minimum custodial sentence in England and Wales where a person is convicted for a relevant offence a second time. The offence will carry a maximum sentence of 4 years imprisonment.
• where a corrosive product or bladed product is sold online, the defence of having taken reasonable precautions can only be relied on where the seller meets certain conditions in terms of age verification and packaging and delivery of the items
• new criminal offences prohibiting the dispatch of bladed products and corrosive products sold online to a residential address. The offence for bladed products is limited to those that can cause severe injury and includes defences for made to order items and those for sporting and re-enactment purposes. The offence will carry a maximum sentence of 6 months imprisonment.
• new criminal offences in relation to delivery companies delivering a bladed article or a corrosive product on behalf of a seller outside the United Kingdom to a person under 18
• updating the definition of a flick knife and prohibition on the possession of flick knives and gravity knives (their sale etc. is already prohibited)
• amending existing law to make it a criminal offence to possess certain weapons (such as knuckledusters and death stars) – the sale and importation of these is already prohibited. It provides for compensation of owners
• extending the existing offences of possessing a bladed article or offensive weapon on school premises to cover further education premises in England and Wales and Northern Ireland
• amending the legal test for threatening with an offensive weapon in England and Wales
• prohibiting high energy and rapid firing rifles and a device known as a “bump stock” which increases the rate of fire of rifles. Existing owners will be compensated.

How we can help

Although the contents of the Offensive Weapons Bill are yet to be made law, in recent months the rhetoric around knife-crime has been ramped up by politicians seeking to respond to public concern about knife-crime.

Judges hear this and often react by imposing increasingly long prison sentences.  These concerns have been reflected in the new guideline relating to sentencing those convicted of possessing offensive weapons.

It is our role to ensure that firstly our clients only enter guilty pleas when such a plea is appropriate.  We will begin to prepare your defence from the very beginning of the investigation, so take advantage of our free and independent legal advice in police interview.

If you are to be sentenced for an allegation involving a weapon or a blade then we will make sure that relevant factors from the background to the offending is properly advanced in mitigation.  The lives of young people in particular may be complex and some of the factors contributing to offending may be hidden.

It is our job to ensure that the full picture is presented to the court.

We provide nationwide advice and representation in criminal cases from our offices across the East Midlands.  You can find your nearest office here.

Alternatively you can use the contact form below:

Category Archives: News

It would be thought that in relation to sexual offences and the issue of consent the issue should be straight forward – yes or no?

As always, life and the law are more complicated than that.  The issue of consent is, unfortunately, not so simple.

What is consent?

 A person consents if she or he agrees by choice and has the freedom and capacity to make that choice.

Can a drunk person give consent?

Yes, drunken consent is still consent.  However, this is where problems can arise. If a person loses their capacity to choose through drink then he or she is not consenting.

Where a person is consenting is frequently the issue in many rape cases.  As a result it is often one word against another.

The Courts have given the following guidance as to the issues to focus upon:

1. Did sexual intercourse take place?
2. Did the complainant consent to sexual intercourse?
3. Did the complainant have the freedom and capacity to consent?
4. Did the defendant reasonably believe that the complainant was consenting? This consideration will not apply in all cases.

Who decides?

 At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.

How do you prove consent?

In the absence of something in writing, and even then, there could be doubts  A jury will have to decide the issue having heard all of the evidence.

In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting.  There must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.

The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may no longer provide a defence.

There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.

How can we help?

This article is a brief analysis of potential issues, as you can see this is an area that would require careful assessment and expert advice.

The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other.

It is our job to present the strongest case possible.  You can read more about how we will prepare your case fro trial here.

To ensure that your defence is properly advanced from the start, you will want to take advantage of our free and independent legal advice in the police station.  The advice is free to you no matter what your income.  You can read about the advantages of early advice here.

Sexual offences are likely to be heard before the Crown Court.  We will always advise you as to your entitlement to legal aid to ensure affordable representation at trial.  You can read more about Crown Court legal aid here.

We provide nationwide representation from our offices across the East Midlands.  You can find your nearest office here.  Alternatively you can use the contact form below.

Category Archives: News

A recent report from the House of Commons Justice Committee entitled “Criminal Legal Aid” has made the following observations and recommendations after hearing evidence across a wide range of issues.  The conclusions are below.

Recent changes to the LGFS

1. The evidence we have received suggests that solicitors have serious grievances about the Litigators’ Graduated Fee Scheme, given the absence of index linking for two decades, the 8.75% cut in fees imposed in 2014, and the recent reduction to the cap on pages of prosecution evidence.
2. The Law Society’s judicial review of the Government’s decision to revise the LGFS means that it would not be appropriate for us to offer comment on the details of the scheme at this point in time. However, we have received evidence indicating a worryingly high level of demoralisation among criminal defence solicitors and threats to the economic sustainability of criminal defence firms, with negative implications for the criminal justice system—especially for defendants. We return to this issue below.
3. We consider it regrettable that the Law Society has had to resort to bringing a judicial review to pursue its grievances about the LGFS. We recommend that the Ministry of Justice take urgent steps to avoid this dispute having to be resolved by the courts. Whatever the outcome of the judicial review, we consider there should be a wider review of criminal legal aid.

Recent changes to the AGFs

1. We consider it regrettable that the Criminal Bar felt compelled to take direct action in response to the new Advocates’ Graduated Fee Scheme, given the potential for adverse impact on defendants and complainants, as well as on the functioning of the courts. However, the underlying reasons for the dispute can be understood, including the failure to ensure that fees keep pace with inflation, the staged fee reductions from April 2010 onwards, unhappiness about aspects of the revised AGFS and the Criminal Bar’s genuine and heartfelt concerns about the future of their profession and under-funding of the criminal justice system.
2. While we welcome the Government’s decision to offer additional funding for the AGFS and the Criminal Bar’s decision to accept the offer, we do not believe that ending this specific dispute has resolved the underlying issues and it is clear that many barristers remain deeply unhappy about their situation and about the future of the criminal justice system.
3. We acknowledge the challenges facing the Ministry of Justice in reworking the AGFS so that it is fair to advocates at all levels of seniority, and in ensuring that it is future-proofed against inevitable changes in the profile of Crown Court cases. We also recognise that the Ministry of Justice has made genuine efforts to address the concerns of the Criminal Bar. To provide for ongoing collaboration with the legal profession on refinements to the AGFS, we recommend that, without any further delay, a system of annual review be built into the AGFS, overseen by a panel which incorporates representatives from the Criminal Bar and solicitor organisations, Criminal Legal Aid 39 alongside Government representatives. The panel’s remit should include considering the inter-dependency between the AGFS and the LGFS, and the impact of changing the former on the operation of the latter.

Expenditure on criminal legal aid

1. As we have observed, there is a common law right to legal advice, together with a right to legal representation for an accused person under Article 6 of the European Convention on Human Rights. We conclude that there is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms placing these rights at risk; we conclude that this risk can no longer be ignored.
2. We also conclude that current difficulties in recruitment to the Criminal Bar could potentially have a negative impact on future recruitment to, and diversity within, the judiciary—in particular for judicial office holders in the criminal courts.
3. Given these risks, we welcome the decision of the Ministry of Justice to consider legal aid for criminal law within the LASPO post-implementation review, as a first step in understanding the crisis that criminal legal aid is facing. We recommend that the output from this workstream be used to underpin a comprehensive and independent review of criminal legal aid, with the aim of devising a scheme that is sustainable and user-focussed; the review should adopt a similar approach to that of the recent independent review in Scotland. This review should be launched no later than March 2019 and should be concluded within 12 months.

Declining expenditure on the Criminal Justice System

1. An effective criminal justice system which successfully prosecutes those who commit crime but which also protects the innocence of the accused unless the prosecution can prove their guilt is one of the pillars on which the rule of law is built. The effectiveness of the system also demands that the fabric of the criminal courts is properly maintained. We conclude that the under-funding of the criminal justice system in England and Wales threatens its effectiveness, and in doing so undermines the rule of law and tarnishes the reputation of the justice system as a whole.
2. Our justice system is widely admired and the UK is a jurisdiction of choice for many individuals and corporate bodies that need to resolve disputes; nonetheless, it faces competition from other jurisdictions. We conclude that the under-resourcing of the criminal justice system undermines the prospects of successfully promoting our legal system abroad, a stated objective of the Government.
3. We recommend that that the Government conduct an urgent cross-departmental review of funding for all elements of the criminal justice system, including criminal legal aid and the Crown Prosecution Service, with the aim of restoring resources to a level that enables the system to operate effectively; the details of this review should be published in advance and its timetable must ensure completion in time to influence the conclusions of the 2019 Spending Review.

Criminal Legal Aid Disclosure of unused material

1. We conclude that the pressure placed on defence lawyers to fulfil their professional obligations by reviewing unused prosecution material without remuneration is fundamentally unfair and—with the continual increase in the amount of such material—likely to become unsustainable, and increasingly prejudicial to the defendant. We recommend that restoring legal aid payments for reviewing unused material above a certain page threshold be considered as part of the comprehensive and independent review of criminal legal aid that we have recommended above.

The link to the full justice committee report can be found here.

Category Archives: News

What are offences taken into consideration or ‘TICs’?

These are offences taken into consideration at the time of sentencing.  These ‘TICs’ are not offences that are charged.

When will a person be asked about them?

 Where someone has pleaded guilty to an offence or offences, or is expected to do so, or are due to be sentenced after trial, a person can admit other matters so that they can be offences taken into consideration at that sentencing hearing.

As well as a person volunteering offences, the police may also approach them to ask if they want to accept any TICs.  It is crucial that free and independent legal advice is obtained at this stage as there are consequences and risks to having offences taken into consideration on sentence.

What happens if I want to admit TICs?

 You will be spoken to under caution.  If you do admit other offences and the police and prosecution agree, a schedule of the offences will be prepared and placed before the court.

It is then for the court to decide whether or not to take them into account when you are sentenced.

The positive side of such a process is that the court will consider the fact that you have assisted the police and shown a genuine desire to “wipe the slate clean”.  This will support any suggestion of genuine remorse for any offending.  More can be found about such mitigation here.

Additionally, the police will no longer be searching for the person responsible for these offences so there will be no risk of future arrests and sentence.

Offences taken into consideration will make a difference to your sentence.  Any sentence will be longer as a result of the TICs,  Any increase, however, may not be as much as if you were sentenced separately for those offences.

The negative consequences of TICs

On the negative side, the acceptance of offences taken into consideration may result in a greatly increased sentence.  They will be treated as an aggravating feature of your offending.  This will be especially true if there is a large number of TICs.

The total sentence imposed has to reflect all of the offending behaviour.

A defendant can also be ordered to pay compensation in relation to TICs.

Finally, it may be that the offences might never have been linked to any suspect.  As a result, a defendant may be admitting more than could ever be proved.  As a result there will be a trade off between peace of mind as against looking over your shoulder wondering whether your past will catch up with you.

Wiping the slate clean

If you wish to wipe the slate clean it is important to ensure that all outstanding offences are admitted, otherwise you may not receive any discount if a future prosecution is brought.

In the recent case of Murray [2018] EWCA Crim 1252 the court observed (citing an earlier case of McLean [2017] EWCA Crim 170):

“It seems to us however that this appellant must have made a conscious choice not to disclose the July 2014 matter in the hope that it would go undetected. In those circumstances he cannot now claim to be sentenced as if both matters should have been dealt with together in January 2015. To permit that to happen at this stage would be unjust to the public interest in giving the appellant an undeserved, uncovenanted bonus. This case therefore is a salutary illustration of the benefits which can accrue to offenders from making voluntary admissions of additional offending and the risks that they run if they choose not to do so.”

What sort of offences can be TIC’d?

 Similar offending is likely to be accepted as a TIC. An offence is unlikely to be accepted as a TIC if –

• it is an admission to an offence more serious than the one you have pleaded guilty to;
• it is an offence that would attract disqualification or penalty points on conviction;
• if it is an offence committed in breach of an earlier sentence;
• where it is an offence completely dissimilar to the one charged; or
• where it is a specified offence when the charged offence is not.

If further offences are admitted will they definitely be offences taken into consideration?

 Not necessarily.

Admissions in the circumstances above may lead to further criminal charges being brought against a defendant.  This is why it is important to seek free and independent legal advice.

How can we help in these circumstances?

Any advice as to whether to accept TICs or not is likely to be dependent on both your personal circumstances and the offences involved.

If we are already representing you then we will be able to take your instructions and provide you with advice on the likely effect of admitting further offences to be taken into consideration.

Where we do not currently act for you and you want our expert advice then please contact your nearest office.  Our independent legal advice in police interview will always be free of charge to you under the criminal legal aid scheme.

Category Archives: News

How many times have you said something like ‘I’m going to kill you’?  Most of the time this will simply be something said in the heat of the moment rather than genuine threats to kill.

If, however, you make such a threat and intend that another would fear it would be carried out then you will be committing an offence of making threats to kill.

The offence is under section 16 of the Offences Against the Person Act 1861. Even though the legislation is very old it is still a commonly used charge. The key part of the offence is that a person intend another to fear that the threat would be carried out.

Is there a defence to threats to kill?

 If you make the threat in self-defence or in the prevention of crime you may have a defence of lawful excuse.  Whether any threat made was reasonable in the circumstances will be a matter for the magistrates or jury.

Equally, a comment made in temper or jest, with no intent to make anyone fear it would be carried out, would not be an offence.

Evidence of previous history between the parties is admissible as tending to prove that the defendant intended his words to be taken seriously (Williams (C.I.), 84 Cr.App.R. 299, CA.)

What if the threats to kill are made to someone else?

 You do not have to make the threat directly to the person, it may be through a third party.

For example, a man in prison made threats to a prison officer that he was going to kill his ex-girlfriend, he was convicted and received five years imprisonment. The threats were taken especially seriously as he had a previous conviction for the manslaughter of his wife.

What sentence can I expect?

The offence can encompass a wide range of offending so in sentencing the court will look at a variety of factors.  These can include the following examples:

• was there a weapon?
• was it a threat in the heat of the moment?
• the impact on the victim
• repeated threats or a single calculated threat?

An example is a case involving threats to kill made to an arresting officer.  The offender knew detail about the officer’s home life which added weight to the threats.  As a result he was sentenced to 2 years imprisonment.

When a weapon is present when threats are being made the offence is much more serious.  An offender who threatened his former partner with a sword received five years imprisonment.

Sentences imposed can range from a community order for an offence that constitutes one threat made in the heat of the moment, through to imprisonment up to a maximum of 10 years for repeated threats or the presence of a weapon.

How can we help defend in a case of threats to kill?

 As you can see, making threats to kill is a serious allegations and the law relating to defences can be complex.

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

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

Category Archives: News

Laws that criminalise unlawful violence date back to 1861 and are used every day in criminal courts to support prosecutions.  Do they criminalise parental chastisement?

Despite what might appear to be an obvious legal position, the question is often asked as to whether, despite those laws, it is permissible to ‘smack’ a child.

The simple answer is that it is lawful to chastise a child by smacking, although the extent of that provision needs explaining in an attempt to make the legal position on parental chastisement clearer.

Perhaps surprising to many is the fact that the UK is only one of two places in the European Union that permits this state of affairs.  The other country is the Czech Republic.

Earlier this year the devolved government in Wales launched a consultation, with proposals to outlaw all smacking of children.  The consultation closed on 2 April 2018 and a response is awaited.

The minister for children and social care said:

“Our knowledge of what children need to grow and thrive has developed considerably over the last 20 years. We now know that physical punishment can have negative long-term impacts on a child’s life chances and we also know it is an ineffective punishment.

While physically punishing children was accepted as normal practice in previous generations, we know that it is increasingly being seen as less acceptable and parents feel less comfortable.

We want parents in Wales to be confident in managing their children’s behaviour without feeling they must resort to physical punishment. If there is any potential risk of harm to a child, then it is our obligation as a government to take action. Legislation was introduced many years ago to stop physical punishment in schools and childcare settings – now is the time to ensure it is no longer acceptable anywhere.”

The move in Wales follows similar developments in Scotland last October about parental chastisement, which resulted in the children’s commissioners of Scotland, England, Wales and Northern Ireland calling for a ban on smacking children.

Attitudes to parenting practices have also changed. While physically punishing children was accepted as normal practice in previous generations, research shows parents today are increasingly using positive approaches which are proven to be more effective, while feeling less comfortable about using physical punishment.  In 1998, for example, 88% of British adults agreed that “it is sometimes necessary to smack a naughty child” while in 2015 only 24% of parents in Wales supported this statement.

Despite this shift in attitude, at the moment there are no plans to change the law as it applies in England.

What does the law allow in relation to parental chastisement?

The law allows an assault on a child provided that it constitutes ‘reasonable punishment’.

Section 58 Children Act 2004 states however that this defence cannot apply to the more serious charges of violence starting with assault occasioning actual bodily harm, and those more serious.

What is ‘reasonable punishment’?

The concept of ‘reasonable punishment’ has its origins in Victorian times. The case that established the legally accepted definition was R v Hopley (1860).

In this case, a boy was beaten by a schoolmaster with the permission of the child’s father.  The beating led to the death of the child.

During the trial, the presiding judge, Chief Justice Cockburn, stated that:

“A parent or a schoolmaster, who for this purpose represents the parent and has the parental authority delegated to him, may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.”

This case established in law reasonable punishment as a defence for those parents, carers or other responsible adults – such as teachers – who were charged with the criminal offence of assault on children.

The use of corporal punishment was commonplace in schools until the 1980s.  From 1986, however, the UK Parliament increasingly restricted the use of corporal punishment, prohibiting it in all state maintained schools in 1987 and in independent schools in 1999. Its use was ended in children’s homes in 2001, Local Authority foster care in 2002 and in childcare provision in 2007.

The question of whether the punishment is ‘moderate and reasonable’ will be for a court to decide on the facts of any individual case.

It is fair to say, however, that any punishment that results in more than transient or trifling injury (leaves a mark or bruise for example), is likely to fall outside of this defence. It is therefore important than parents find other mechanisms to deal with children who might at times be very challenging.

How we can assist in allegations of unlawful parental chastisement

Such allegations will always be treated seriously and the law is complicated.  As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

Category Archives: News

Clients of Chesterfield crime solicitor Denney Lau have had a successful week before Chesterfield Magistrates’ Court.

Successful exceptional hardship argument

Denney’s client was guilty of failing to notify the details of a driver when required to do so by the police.  Unfortunately he already had ten penalty points on his driving licence.  As a result, the minimum of six penalty points that would be imposed for the new offence would make him liable for a disqualification for a minimum of six months under the totting up procedure.

To avoid this, Denney successfully argued before the Chesterfield Magistrates’ Court that his client would suffer exceptional hardship if he was to be disqualified.  Although any disqualification is likely to lead to hardship, in this case our client would not only lose his employment as a driver but also his home.  He would be unable to continue with the additional responsibilities that he had for his grandchildren.

Our client was relived that he was able to keep his driving licence although it now had sixteen penalty points upon it.

Not guilty of driving whilst disqualified

Two days later, Denney represented another client who was standing trial at Chesterfield Magistrates’ Court in relation to an allegation of driving whilst disqualified.

A police officer had intelligence suggesting that our client had been using a particular vehicle whilst disqualified and therefore without insurance.  The police saw the vehicle.  There was a pursuit and when the vehicle came to a halt three people ran away from the vehicle.

The officer claimed that he was sure that the driver of the vehicle was Denney’s client.  This was disputed at trial.

Challenging police evidence can often be difficult.  It is the case that Magistrates are often more persuaded by the evidence of an officer than by that of a defendant.  Denney conducted his own research into the credibility of the officer in question.  He found that the officer had appeared before the police disciplinary panel for misconduct recently.  That misconduct was that he had deliberately made a wrong entry onto the Police National Computer.  As a result the officer had received a warning about his conduct.

In order to have this information before the court, Denney had to make a successful bad character application.  Aside from cross-examining the officer about the disciplinary finding, Denney also asked him detailed questions about the difficult circumstances of the identification.

After considering the evidence in the case the magistrates found our client not guilty of the offences.

Denied shop theft allegation

Four days after that a different client stood trial at Chesterfield Magistrates’ Court in relation to an allegation of shop theft.  In this case a store manager claimed that he had witnessed a theft, identified our client from CCTV and then given chase before our client left the scene in a vehicle.

Our client had, unfortunately, chosen not to take advantage of our free and independent advice in police interview.  He had, however, stated that he did not recall being involved in such an incident.

In preparation for what could be a difficult trial Denney closely examined the CCTV footage.  He discovered that the offender’s face could not be seen.  As a result, this cast doubt on the identification made by the store manager.

In his closing speech, Denney argued that the Magistrates needed to examine closely the circumstances in which the identification was made.   Mistakes can be made in recognition of close relatives and friends can sometimes made be made.

Again, having heard Denney’s argument and considered the evidence the court found his client not guilty.

Seek our representation before Chesterfield Magistrates’ Court

You can ensure that you are represented by Chesterfield crime solicitor Denney Lau by phoning 01246 387999 and making an appointment to see him.  Contact him in advance of any police interview or court appearance and if he is available then he will be with you, or make arrangements for one of his experienced colleagues to attend instead.

Alternatively you can use the contact form below.

Category Archives: News

On 7 June 2018 the Sentencing Council published new guidelines for judges and magistrates.  These are to be used when offenders are being sentenced for breaching court orders.

The guidelines provide a clear approach.  This mean that the way courts deal with such offenders will be tightened up.  These are people who are breaching court orders by not complying with orders such as suspended sentence orders, community orders, restraining orders and sexual harm prevention orders.

It is the first time there have been comprehensive guidelines setting out a consistent approach for courts to use.  They will help ensure that for offenders breaching court orders those sentencing will impose appropriate penalties according to the seriousness of the breach.

What breaches of court orders are covered by the guideline?

• Breach of a Community Order
• Breach of a Suspended Sentence Order
• Breach of Post Sentence Supervision
• Failing to Surrender to Bail
• Breach of a Protective Order (restraining and non-molestation orders)
• Breach of a Criminal Behaviour Order and Anti-Social Behaviour Order
• Breach of a Sexual Harm Prevention Order and Sexual Offence Prevention Order
• Failing to Comply with Notification Requirement
• Breach of Disqualification from acting as a director
• Breach of Disqualification from keeping an animal

When does the guideline on breaching court orders come in to force?

The guideline for breaching court orders will come into effect in courts on 1 October 2018.

Is the guideline a change in approach?

Courts are required to follow guidelines and these guidelines closely reflect legislation and define more clearly appropriate court responses to breaching court orders.

For example, in relation to suspended sentence orders, legislation states that they must be activated – i.e. the offender will be sent to prison – in the event of a breach unless it would be unjust to do so.

The guideline gives clearer guidance on this consideration.  Offenders will now not get opportunities to avoid their sentence being activated. For activation to be considered to be unjust, there would need to be new and exceptional circumstances – not present at the time the order was imposed – that prevented them from complying with the order. This might involve for example the offender taking on caring for a disabled relative which greatly affects their ability to comply with an unpaid work requirement.

The guideline also covers breaching court orders imposed to prevent particular behaviour or protect individuals or groups from it.  These include Sexual Harm Prevention Orders and Restraining Orders. The guidelines prompt courts to look at an offender’s motivation and intention in committing a breach to assess the seriousness of the breach. The guidelines also instruct courts to look at any harm caused, and for the first time in a guideline, the risk of harm being caused.

Including a focus on risk of harm for such breaches helps ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public.  As a result no actual harm needs to have occurred. This could include for example a sex offender who fails to comply with notification requirements with the intention of evading detection in order to commit further offences.

Sentencing Council member Julian Goose said:

“Court orders are there to protect individuals and the wider public from particular types of offending or continuing criminal behaviour by offenders. Making sure that offenders comply with court orders is crucial in reinforcing public confidence in sentencing. Where offenders do not comply, the public have a right to expect that this is properly addressed by the courts. We are giving courts clear guidance on what action should be taken against those offenders who ignore court orders so that they are dealt with robustly and consistently.”

Will more people go to prison as a result?

The Sentencing Council conducts research to assess the impact of its guidelines on future sentencing practice. This is a difficult task and the findings are subject to many caveats.  However, the following pattern emerges:

Protective orders:

‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. There are two exceptions which may lead to higher sentences for some breaches of a restraining/non- molestation order.’

Criminal Behaviour Order:

‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. The exception is for the most serious breach cases that fall in categories A1, A2 and B1, where there has been an extension to the category ranges, and also at the bottom of the distribution where there may actually be a reduction in sentence severity.’

Breach of notification requirements:

‘A review of transcripts of cases has confirmed that current guidance is not considered adequate by sentencers to address offences falling within the top end of seriousness. The new guideline is more prescriptive and as a consequence it is possible that there may be more sentences at the top end of the guideline range.’

Suspended Sentence Orders:

‘…it has not been possible, (and it is not advisable), to calculate any informative or realistic estimate of the guideline on sentencing practice or the subsequent impact on prison or probation services.’

Breach of disqualifications:

‘…any potential impact would be minimal.’

Failing to surrender to bail:

‘The new wording and format of the guideline regarding consecutive sentences is considered to be in line with the existing guideline, and therefore is not anticipated to have an impact on prison or probation resources.’

There was insufficient data to provide an insight into the effect on sentencing for breach of Sexual Harm Prevention Orders or SOPOs.

In our experience sentencing guidelines often do lead to unintended rises in sentence length, possibly due to a lack of understanding, something our advocates are acutely aware of.

If you are breaching a court order how can we help?

 If you know that you are in breach of a court order then please contact us immediately.  The breach may be a matter investigated by the police and involving a police interview.  If so, our independent advice and representation of you in such an interview will be free of charge.

If you face court proceedings it may well be that you are entitled to free legal aid in the Magistrates’ Court or legal aid with or without a contribution in the Crown Court.

You can find the office most convenient to you here.

Alternatively you can use the contact form below.

Category Archives: News

The government has announced its intention to use new breathalysers to administer roadside breath tests.  This move could see a further 6,000 convictions per year for those who drink and drive.

Roadside breath tests followed by evidential tests

At the moment, breath test procedures are in two stages.  Those who test positive during roadside breath tests will be arrested and taken to a police station.   This is for a further test to be administered.  The second test is known as the ‘evidential test’.  It is the result of this test that forms the basis of any prosecution decision.

The gap in time between the first positive roadside breath tests and the ones administered at the police station may be significant enough to ensure that a person blows a negative reading.   This would be due to falling alcohol levels over time.  In some cases, however, the reverse can also happen.

Although the law permits ‘back calculations’ to be undertaken,  the evidence base is such that they are seldom used by the prosecution in this scenario.  As a result it has been argued that some drink drivers go free.

The legislation providing a procedure for definitive evidential roadside breath tests is already in place.  In June 2018 the government has announced a competition aimed at device manufacturers, with the aim of ensuring that suitable devices are approved and in use for roadside breath tests by 2020.

Around 460 000 breath tests are conducted each year.  Approximately 59 000 people providing a positive reading.

Approximately 6 000 people provide a positive reading at the roadside but are later found to be under the limit when tested at the police station.  This change will see those people prosecuted.

In many instances these will be people who have ‘gambled’ on a quick lunchtime drink or have not allowed quite enough time to sober up from the night before.

The changes will also reduce the scope for so-called ‘loophole defences’.  These have been made popular due to the complexities of the police station procedure. It is expected that decades of case law will become redundant once the new devices are being used.

Experience does, however, tell us that legal challenges will continue to be developed even when other avenues of law are closed to suspects and defendants.

The penalties for drink driving are severe.  There are minimum periods of disqualification.  These can be combined with high financial penalties and punishing insurance premiums for many years to come.  Prison sentences will be imposed in the most extreme cases.  As a result, many offenders face the loss of employment.

How can we assist?

Our motoring solicitors are experts in all aspects of drink and drug driving law. This is one of the most complex areas of criminal law.  Early advice should be sought to ensure that you achieve the best outcome in your case.

In some recent cases we have successfully argued a medical defence to failing to provide a specimen, argued special reasons to avoid a disqualification from driving   and conducted  a trial securing a not guilty verdict for our client facing drug driving charges.

In some case, such as this one, our clients accept that they are guilty but wish to mitigate the usual effect of a conviction, such as a disqualification.

We have expert road traffic lawyers at our six offices across the East Midlands.  Find your nearest office here.  Alternatively you can use the contact form below.

Category Archives: News

On 4 May 2018, Deputy Police and Crime Commissioner Kevin Gillott and Rosemary Spilsbury, Business and Performance Manager with the Derbyshire Criminal Justice Board, met with a group of Chesterfield crime solicitors who represent clients appearing before North Derbyshire Magistrates’ Court.

The meeting was informal in nature, arranged through Derby crime solicitor Nick Wright as the Derby and District Law Society representative for criminal matters.  The outcome has been shared with Legal Aid account managers and the Chair of the Derbyshire bench.

The aim of the meeting was to discuss any issues Chesterfield crime solicitors had with the processing of suspects and defendants by Derbyshire constabulary.  Some of the issues were also relevant to HMCTS and the CPS so the details were to be forwarded on.

Present were our Chesterfield crime solicitors David Gittins, Ben Strelley and Denney Lau, as well as other local practitioners.

The following matters were discussed:

Police Investigations

Police no longer appeared to be investigating both sides of a complaint during the investigation stage.  It was seldom, if ever, that they would speak with named defence witnesses.

Those interviewing suspects appeared to have a pre-conceived idea of what would be put in interview.  The series of questions were not departed from or amended dependent upon answers given by the suspect.  As a result, issues were not properly developed or interviews went on far longer than was necessary.

The need to investigate the issues raised by a suspect where relevant has been raised with the local body responsible for police training.

Bail and suspects released under investigation

The fact that bail could continue to be used did not appear to be properly considered by officers.

Instead, the overwhelming majority of suspects were simply being released under investigation (RUI).  Thereafter, there was no obvious suggestion that an investigation was being actively pursued.

Under the old bail system, Chesterfield crime solicitors at least had the opportunity to exercise some oversight in a case.  Representations could be made when suspects returned to the police station on bail, and bail milestones were set by which time there was a reasonable expectation that things might have progressed.

The police are to be encouraged to respond to emails from the defence explaining what is happening so that clients can be kept informed of progress.  The defence may be able to assist if, for example, it is discovered that a client has been subject to a postal requisition but has moved address.  The defence may be able to help save scarce police resources by making contact with a suspect if a further interview is required or with a defendant to make sure court dates are kept.

Superintendent Lewis will be contacting all police staff to ensure they are aware of the importance of updating suspects and their legal representatives.

Voluntary interviews

The number of voluntary interviews is increasing.  Unfortunately police stations lack the facilities to cope.  Voluntary interviews are not meant to take place in the cell blocks and several interview rooms are out of use.

The voluntary interview process and facilities are being reviewed. In the short term voluntary interviews will continue to take place in the cell block but longer term alternative rooms will be identified in police buildings across the force area.

Chesterfield Custody Suite

The facilities at Chesterfield custody suite are particularly poor.  Although the rooms in the cell block are also poor, they are still better than many of the rooms provided for voluntary interviews at many sites.  Although there has been some repairs and decorations at Chesterfield custody, other options may need to be considered in the long term.

Disclosure of evidence in particular cases

On practitioner cited a specific case where the alleged offender himself is vulnerable with a history of suicide attempts.  Phone records, and particularly text messages, were relevant to the case.  The case summary referred to 7,000 text messages that the police had retrieved.

The defence had requested this relevant material at the beginning of the case.  Three months later the defence was provided with a disc that could not be read without particular software and a password.  The defence had neither the software or the password.

Chesterfield crime solicitors are to be provided with the different types of format in which such information will be provided in future and where the software and other information can be obtained.

Disclosure of CCTV footage to Chesterfield crime solicitors

CCTV is not being provided to Chesterfield crime solicitors for the first hearing at the Magistrates’ Court.  It does not matter whether the case is anticipated to be a guilty or not guilty case.

There is an additional difficulty again in relation to the different formats in which it is supplied.  Some formats do not work on defence systems and again there are problems with the footage being password protected.

Again, we are to be provided with details of different formats used for different purposes and the software needed to access the CCTV footage.

Anticipated Plea

Unfortunately the police often anticipate the plea incorrectly.  This is a particular problem where a defendant has exercised their right to silence and there has been a ‘no comment’ interview.

If a case is wrongly identified as a ‘guilty’ plea then there will be no statements, exhibits or CCTV.  This generates a delay at court while this evidence is provided.  It will also mean that it is unlikely that issues raised by a suspect in interview will have been investigated.

A Criminal Justice review underway to establish how certain assumptions are made on plea, and how to improve the assessment of plea.

Respect for suspects and defendants

A plea was made that officers not refer to alleged offenders as ‘perps’ in the early summary of the case.  Rosemary has kindly fed this issue back to those responsible for training local officers and it is to be included in a Message Of  The Day to officers.

Buxton police station

There has been discussion as to whether the custody suite is to close and prisoners be processed elsewhere.  Unfortunately there is no answer, so a request was made that there is proper consultation with local defence solicitors, including Chesterfield crime solicitors, if change is to be considered.

Temporary closure of custody suites

When police close a custody suite temporarily the police have been asked that the duty solicitor covering that station be notified.  As a result of the meeting, the Chief Inspector has a request to Custody staff for this to be done.

Best evidence

It was noted that the police are filming information from the phones of witnesses or complainants rather than seizing the device upon which the messages , photographs or footage is recorded on.

This provides a problem with disclosure.  Neither the prosecution or defence are able to access the full thread of messages or the original footage so allow the full context to be shown.

Disclosure issues have been recognised nationally by both the police and the Crown Prosecution Service and there is to be increased training for both agencies. The College of Policing is producing a national training package for officers.

Reporting poor practice

The Chesterfield crime solicitors present at the meeting observed that it would be useful for defence solicitors to be able to give feedback in relation to specific issues.

If there are examples of poor work that do not need an immediate response then Rosemary passed out her email address and encouraged direct contact in order that the issues can be resolved.

Conclusion

Those present were of the view that the meeting was useful.  It was also an indicator that there could be a constructive working relationship between the police and defence practitioners in order that all parties, including suspects or defendants, will benefit from change over the long term.

It is hoped that further such meetings will be arranged for the future.