Although some breaches of environmental law amount to criminal offences, not all do.
There are a wide range of potential penalties that are quite different to those usually faced for standard criminal offences. Even where a criminal offence has been committed, court action and all that it entails can very often be avoided.
It is therefore vital that you take legal advice at the outset of any Environment Agency investigation, as we are best placed to ensure you exit with the least possible penalty in the event that you have committed any wrong.
Prosecution is said to be a last resort, and any enforcement action has to be proportionate and appropriate. This article is intended as a guide to the penalties that are available.
Criminal and offence specific responses to breaches of environmental law
A Warning – this will set out the offence believed to have been committed, the corrective action expected to be taken within a set time and what will happen if action is not taken.
A Formal caution – can be imposed where a prosecution could be commenced, the offender admits the offence and consents to be cautioned.
Prosecution fixed penalty – can be imposed for certain offences. If it is not paid a prosecution can follow.
Prosecution – the Agency must be sure there is a realistic prospect of conviction, and it is in the public interest to prosecute.
Civil sanctions
When the Agency decides to impose a civil sanction (except a stop notice) they will:
serve a notice of intent
provide an opportunity to make written representations within 28 days
consider any representations
make a final decision and notify you with concise reasons for the decision.
A Compliance notice – this requires the offender to come back into compliance and can also apply where advice has been given but not followed.
A Restoration notice – a formal notice requiring the offender to put right any damage caused by an offence. Steps to take will be set out in the notice to rectify the situation within a set time.
A Fixed monetary penalty – can be issued where advice has been given and not followed or for minor offences.
Variable monetary penalty – issued for more serious offences where it is not in the public interest to prosecute. This penalty may also be issued in conjunction with a compliance or restoration notice.
Stop notice – requiring an activity to be stopped immediately, it will set out action to be taken and will remain in force until the action is taken.
Enforcement undertaking – a voluntary offer by the offender to put right the effects of the offending behaviour. If accepted the offer becomes a binding agreement. If the offender complies then a prosecution cannot be taken.
How we can help with breaches of environmental law
Nottingham crime and regulatory solicitor Martin Hadley
Not all penalties are available for all breaches or offences, and representations can be made to the Environment Agency about the most suitable penalty. We can assist you with those representations.
Please contact crime and regulatory solicitor Martin Hadley on 0115 9599550 at our Nottingham officer or use the contact form below.
Contact
Category Archives: News
With the ever-growing popularity of social media websites such as Facebook, Twitter and Instagram it is important to take a step back and consider your use of them. You need to make sure that you and your children not only control the personal information that is put onto social media but also your behaviour on such sites to steer clear of social media crime.
Control your online information
Be aware of the potential for cyber-enabled fraud. Fraudsters can use information obtained from such sites to commit identity theft. Telling everyone about your forthcoming holiday may also be an advance invitation to a burglar. It is surprising how much information we reveal about ourselves over a period of time.
If you have children you also need to be aware of the dangers of persons contacting them and then grooming your child. This involves building an emotional attachment to them with a view to a meeting for the purpose of sexual abuse or exploitation.
Many online games allow for messaging between users – do you know who your child is talking to?
Control your own behaviour
Many offences can be committed in the heat of the moment or when in drink. They will involve the typing of a comment that cannot then be taken back.
Trolling, or sending abusive messages online, can be an offence under the Malicious Communications Act 1988 and the Communications Act 2003. Stiff penalties can be imposed in either case.
What may seem to be banter to you may actually be offensive. What may be intended to be seen by a few could end up being seen by thousands of social media users.
The use of a fake social networking profile or account may also be a criminal offence in certain circumstances.
What about freedom of speech and social media crime?
Freedom of speech is not an absolute right and may be restricted where necessary and proportionate.
Think it couldn’t happen to you?
You might remember the Robin Hood Airport case? In that case a young man made what he intended to be a jokey comment about blowing up the airport if he couldn’t make his flight due to adverse weather.
He found himself in court and was convicted by magistrates. He lost his appeal to the crown court. His conviction was finally quashed at a second High Court appeal. By then he had already lost his job as a consequence of the conviction.
What are the consequences?
Social media has recently been blamed for an increase in knife crime. It is argued that it can amplify the effect of violence. Accordingly, online offences are being dealt with seriously.
Last year the Crown Prosecution Service updated its policy statements in order to take account of the increase in online abuse,. The change is to emphasise that individuals need to appreciate they can’t go online and use their keyboard without any consequences.
At the other end of the spectrum, saying something unpopular or unpleasant is not unlawful. People’s sensitivities do need to be balanced with free speech, and we see reported a number of cases that cause us concern.
This tide of sensitivity could result in people pleading guilty when in fact they are not.
How can we help defend social media crime?
Social media crime will involve serious allegations and the law is 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 Disclosure and Barring Service (‘the DBS’) is a government organisation responsible for the reporting of convictions and other information to employers and other relevant organisations.
What data is held by the disclosure and barring service?
The Disclosure and Barring service holds three classes of information:
Class 1
Spent and unspent convictions, cautions, reprimands and final warnings.
Class 2
The class 1 information plus police intelligence information. For example, this might include where a person has been arrested for a crime.
Class 3
A list of people on ‘barred lists’ who are prevented from working with children or vulnerable adults
What can an employer require?
This will depend on the type of the organisation. As a result, if a person applied for a job at a local supermarket, only the class 1 information would be available. This is because the job is not sensitive in any way. In such a situation the certificate available would merely show whether there were any unspent convictions that ought to be disclosed. It would be the prospective employee who would request the certificate from the Disclosure and Barring service. This is called a ‘basic check’.
For many occupations an enhanced certificate can be required. This could lead to the disclosure of information held that fall into classes 2 and 3.
There are obvious examples of such employers. These will include the police service or professions such as solicitors. But there is also a very wide range of organisations who employ people who may come into contact with children or adults, such as nursing or childcare.
What is on an enhanced certificate?
Unspent convictions will appear on the enhanced certificate.
However, whether spent convictions and police intelligence appear depends on the application of filtering guidelines and individual decision making within the Disclosure and Barring service. As a result, the outcome may well differ depending on the relevancy of the information to the role.
A recent Supreme Court decision in R (on the application of AR) (Appellant) v Chief Constable of Greater Manchester Police and another (Respondents) means that police forces can reveal whether individuals have been acquitted of criminal charges when issuing information for enhanced record checks. The case establishes new guidelines in balancing an individual’s right to privacy when applying for employment against the need to protect public safety.
An enhanced criminal records certificate will include information on the basis simply of the chief constable’s opinion as to whether it “ought to be included in the certificate”.
Part of the reasoning given was that “In principle, even acquittal by a criminal court following a full trial can be said to imply no more than that the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”
Is it fair that a spent conviction, an allegation or an arrest not resulting in prosecution will be disclosed?
This is one of the most frequent questions that we receive. It is not always easy to answer. This is in part because we are awaiting some important judgments and a decision from the government in relation to some aspects of the Disclosure and Barring service.
The starting point is that it is likely that DBS will continue to retain all conviction and intelligence information. This follows a key recommendation following the Soham murders.
The issue for most people is not so much the storing of the information, but the disclosure of irrelevant information.
There is a complex filtering process which will lead to the inclusion or removal of information. The rules as to when a conviction or caution will be filtered are set out in legislation. This states that a certificate must include the following:
cautions relating to an offence from a list agreed by Parliament
cautions given less than 6 years ago (where individual 18 or over at the time of caution)
cautions given less than 2 years ago (where individual under 18 at the time of caution)
convictions relating to an offence from a prescribed list
where the individual has more than one conviction offence all convictions will be included on the certificate (no conviction will be filtered)
convictions that resulted in a custodial sentence (regardless of whether served)
convictions which did not result in a custodial sentence, given less than 11 years ago (where individual 18 or over at the time of conviction)
convictions which did not result in a custodial sentence, given less than 5.5 years ago (where individual under 18 at the time of conviction)
A list of offences which will never be filtered from a criminal record check has been taken from legislation.
The list includes a range of offences which are serious, relate to sexual or violent offending or are relevant in the context of safeguarding. It would never be appropriate to filter offences on this list. Also, the legislation covers equivalent offences committed overseas.
In relation to the latest decision at the Supreme Court, the following concerns were expressed as to how employers would treat the information:
“Nor does there appear to be any guidance to employers as to how to handle such issues. Even if the ECRC is expressed in entirely neutral terms, there must be a danger that the employer will infer that the disclosure would not have been made unless the chief officer had formed a view of likely guilt.”
Positions where filtering does not apply
There are a small number of defined positions where details of all convictions and cautions may be taken into account. These positions do not come through the DBS process. Some examples are police vetting and firearms licence applications.
If the position or occupation is covered by the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 but not subject to a disclosure by the Disclosure and Barring service then the employer is entitled to ask about, and receive information about, all spent convictions and cautions.
The employer should, however, follow existing guidance and conduct a case-by-case analysis of any spent convictions and cautions and consider how, if at all, they are relevant to the position sought.
It would be advisable for the employer to keep records of the reasons for any employment decision and in particular rejections. These reasons should include whether any spent convictions or cautions were taken into account and, if so, why.
If the employee fails to disclose any spent convictions or cautions when required by law to do so, he or she will not be protected from the consequences of this. The Rehabilitation of Offenders Act will not apply.
Is there anything I can do?
You need to understand before an application is made what is likely to be disclosed. That will enable you to act quickly if notified that disclosure is to be made. Please note, however, that the police are not obliged to notify you in advance.
It is also important to note that the filtering process does not deal effectively with police intelligence information, for example, arrest not resulting in prosecution. The police will apply ‘statutory disclosure guidance’ alongside a ‘Quality Assurance Framework’ when making a disclosure decision.
You will be able to make representations to the ‘Independent Monitor’, and in some instances, it may be possible to take court action to prevent future disclosure.
We have seen a large number of court challenges to the Disclosure and Barring service processes. The High Court ordered another significant change as recently as October 2017 (R (R) v The National Police Chief’s Council & Anor [2017] EWHC 2586 (Admin)).
How we can assist you
There is no instant answer that can be given to the often-complex scenarios that we are presented with.
The disclosure of irrelevant information can be extremely harmful, and therefore each case must be analysed with the utmost care to ensure against wrongful disclosure.
We are happy to advise, guide and make representations on your behalf, and if appropriate, advise on legal remedies in relation to the Disclosure and Barring service.
To discuss any aspect of your case please contact one of our solicitors at your nearest office. Details can be found here. Alternatively you can use the contact form below.
VHS Fletchers officers
Contact
Category Archives: News
So called ‘Rogue landlords’ are frequently in the news for allegedly charging tenants too much money, refusing to release a deposit or being responsible for an unlawful eviction.
What is meant by ‘unlawful eviction’?
The statutory starting point is the Protection from Eviction Act 1977.
Section 1(2) states when someone is guilty of this offence of unlawful eviction:
“If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he is guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”
Elements of the offence of unlawful eviction and key players
The terms ‘eviction’ and ‘deprivation’ have been interpreted in a relatively intuitive manner by the courts, a key factor being the lack of access.
In Yuthiwattana (1984) 80 Cr App R 55 the court looked at differing levels of access deprivation and stated:
‘In our view “permanency” goes too far. For instance, if the owner of the premises unlawfully tells the occupier that he must leave the premises for some period, it may be of months or weeks, and then excludes him from the premises, or does anything else with the result that the occupier effectively has to leave the premises and find other accommodation, then it would in our view be open to a jury to convict the owner under subsection (2) on the ground that he had unlawfully deprived the occupier of his occupation. On the other hand, cases which are more properly described as “locking out” or not admitting the occupier on one or even more isolated occasions, so that in effect he continues to be allowed to occupy the premises but is then unable to enter, seem to us to fall appropriately under subsection (3)(a) or (b) , which deal with acts of harassment.’
Someone does not necessarily have to be a tenant to be a residential occupier. It is possible to gain protection as a contractual licensee, as set out in the case of Thurrock Urban District Council v Shina (1972) 70 LGR 184.
But I had a good reason to deprive someone of their access, how do I show this?
If you are accused of unlawfully depriving someone of access to their property in the manner described above, it is for you to prove that you “believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”
This would only avail a landlord of a defence where the tenant had removed all physical signs of possession from the premises and where the landlord had good reason to believe that he would not be returning. The reason for this is that “possession” is synonymous with “occupation”, meaning something more than physical presence.
Before possession can be obtained of residential premises, in all cases other than where there has been voluntary vacation, there must be a court order. This will also be the case for tenants protected by the Rent Acts or Housing Act 1988, as well as for restricted contracts where a licence only is granted.
What are the penalties for this offence?
The offence carries a maximum punishment of two years’ imprisonment and/or an unlimited fine and can be tried in both the magistrates’ and crown courts.
How can we help
Crime and regulatory solicitor Martin Hadley
If you are concerned about allegations of unlawful eviction or other alleged offences relating to landlords and tenants, then please contact crime and regulatory solicitor Martin Hadley on 0115 9599550 at our Nottingham office. Alternatively you can use the contact form below.
Although we won’t be the firm that will have drafted any letting agreement that you have, we are a firm that specialises in criminal defence and will therefore ensure that any allegations arising from any tenancy will be strongly defended on you behalf. This will include advice and representation in any interview under caution, whether with the local authority or the police, and court representation.
Contact
Category Archives: News
Our clients will turn their mind to what punishment they might receive if they plead guilty to, or are convicted of, a criminal offence. In most cases the thought is whether it might be a prison sentence, a community penalty, or a hefty fine and perhaps not a directors disqualification.
While the substantive penalty is, of course, important, on occasion there are other things more serious to consider. In previous articles, we have looked at issues such as confiscation, and in this article, we consider a company directors disqualification.
What do business people need to consider?
The Company Directors Disqualification Act 1986 provides that a court may make a disqualification order where a person is convicted of an offence which is concerned with the mismanagement of a company.
There are a wide number of scenarios catered for under the Act. As a result the actual circumstances must be considered with care. In certain situations, offences committed abroad will also qualify, as set out in section 5A of the Act.
What conduct is relevant?
Both the internal and external management of the company are relevant to section 2(1) of the 1986 Act (Corbin (1984) 6 Cr App R (S) 17). A director’s general conduct in running the affairs of the business is also relevant (Georgiou (1988) 10 Cr App R (S) 137).
The court has extensive discretion in relation to most offences:
‘This is a completely general and unfettered power given by Parliament to courts on the occasion when a person is convicted of an indictable offence of that type. Parliament has decided not to give the sentencing court any guidance as to the way in which it ought to exercise its powers of disqualification in the very many and varied circumstances in which it may come to exercise those powers” (Young (1990) 12 Cr App R (S) 262).
What is a ‘disqualification order’?
The effect of the order is to prevent a person being involved in the future affairs of [any] company:
he shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the court, and
he shall not act as an insolvency practitioner.
How long does the order last?
An order made by a Magistrates’ Court can be for no longer than five years. An order made by the Crown Court must be no longer than fifteen years, although in relation to some offences there is a shorter time frame specified.
The Court of Appeal has on occasion supported the making of lengthy orders, for example, one lasting eight years in R v Singh-Mann and Others [2014] EWCA Crim 717.
Will a guilty plea make any difference as to the length of the order?
A guilty plea will not act to reduce the disqualification period. This is because the discount for an early plea does not apply to ancillary orders (Clayton [2017] EWCA Crim 49, [2017] All ER (D) 71 (Jan)).
It is, however, inappropriate to order disqualification where the offender is conditionally discharged (Young (1990) 12 Cr App R (S) 262).
It may be inappropriate for a court to order compensation to be paid by a director who, by virtue of the making of this type of order, will be deprived of the ability to earn a living (Holmes (1992) 13 Cr App R (S) 29).
What happens if I breach the order?
Imprisonment of up to 2 years may be imposed if an order relating to a directors disqualification is breached.
How we can assist in a directors disqualification case
We are experts in all aspects of criminal law. As a result we are well placed to advise you if the above provisions relating to a directors disqualification might be invoked in your case. If you have any concerns or simply to discuss any aspect of your case, then please contact your nearest office here.
Alternatively you can use the contact form below.
Contact
Category Archives: News
We are often asked questions about Queen’s Counsel, or QC’s. This is most probably because the image of leading barristers has been epitomised over the years in leading television dramas such as Silk and Kavanagh QC. As a result it is not surprising that many initially wish to investigate the possibility of instructing a QC to defend their case.
So, first, what is a Queen’s Counsel or QC?
A QC, to put it somewhat grandly, is ‘one of Her Majesty’s Counsel, learned in the law.’
The first thing to know is that there is no actual connection to Her Majesty. Queen’s Counsel, while appointed with the final authority of the Queen, are in fact selected by an independent appointments commission.
In practical terms, QCs are barristers or solicitors who have been able to evidence the highest courtroom skills. It is an award for excellence in advocacy.
While the figures vary year on year, about 10% of the bar (the barristers’ profession) are Queen’s Counsel, so it is a pretty select group. There are very few solicitor QCs. The ability of solicitors to apply was only extended to them quite recently and the number of solicitors who specialise in advocacy is relatively low.
There are also honorary Queen’s Counsel who in most instances do not practice at all (such as legal academics), or if they do are not allowed to use the title for that purpose.
Do I need a QC?
There are some things to consider before instructing a QC. The first is that the QC may not be the best person for the job. For example, in many cases, before the magistrates’ court, it is often better to instruct a highly experienced local solicitor who knows the court and this type of court procedure.
It may be that a Queen’s Counsel who is accustomed to defending fraud cases at the Old Bailey may be quite useless appearing on a drink-driving accusation at Mansfield Magistrates’ Court.
Generally speaking, in a perfect world, it makes sense to have the best available advocate, if you can. The ‘best’ may not always mean a Queen’s Counsel though.
If the case is not the most complex, it may well be that a highly experienced junior advocate can more than adequately deal with it. There are also some specialist areas where a junior advocate may be more experienced. This is seen most often in regulatory work, for example.
It is also essential that the advocate works seamlessly as a team with your Crown Court litigator to ensure the best case preparation possible. This is something that we value particularly highly as it can significantly affect the overall outcome of your case.
Where liberty is at risk, it is, however, understandable that some people will wish to leave nothing to chance. They might feel a particular level of comfort in instructing a QC.
So, for most people, the issue is not ‘should I?’, it becomes one of ‘can I?’.
Instructing a QC in privately funded cases?
If you are funding your own defence costs, the crucial question is whether you can afford to engage in instructing a QC. In some instances, it may be possible to instruct a QC alone to defend. In other cases, Queen’s Counsel and a junior advocate will be needed. Ironically this might be more cost-effective.
It is impossible in this article to give indicative costs. These will vary greatly depending on
the type of case
the volume of papers
whether it is a guilty plea or contested trial
if a trial, the likely length.
In all but the most straightforward guilty plea cases the cost of instructing a QC can easily reach into the tens of thousands. As a result, for all but the very wealthy, there will need to be a considered decision. It is not one that should not be made lightly. We will, of course, carefully navigate you through all of the available options and provide you with the necessary advice.
Can I instruct a QC in a legally aided case?
If your case is legally aided, then it is very unlikely that we can instruct a QC unless the case is one of particular gravity or the utmost complexity.
Most people would assume, for example, that instructing a QC would be permitted in all murder cases. Surprisingly that is not the case. If the option of Queen’s Counsel is available, we will make the application for you and advise of the outcome.
Many people ask whether they or someone on their behalf can pay privately for a QC while receiving legal aid funding for the other elements of the case. If that is something that you wish to discuss, then please speak to us at the earliest opportunity.
In conclusion, there are many cases where instructing a QC is desirable if it can be achieved. However, the vast majority of cases will nor merit a QC, and you can be assured that we will ensure that your representation will be designed to bring about the best possible outcome. This might be through a Solicitor Advocate employed by this firm or through the use of independent counsel.
As a firm, we are immensely proud of the strong working relationship that we have with all of the advocates we regularly instruct. It is probably this close relationship more than anything else which affects case outcomes, so even if you cannot secure a QC to represent you, you should not feel that you are not getting the very best service.
How we can assist
To discuss any aspect of a case before the Crown Court then please contact your nearest office. We will advise you about representation. This will include the pros and cons of proceeding privately.
For example, there is likely to be a bar on claiming back the costs of your defence if you would have been entitled to legal aid but chose not to take advantage of the scheme.
It is common for officers at airports and other ports of entry to intercept people carrying controlled drugs in their luggage, clothing or inside their bodies on behalf of suppliers in foreign jurisdictions. The colloquial term for such a person involved in drug importation is a ‘mule’. They may have been pressured into carrying the drugs or have done so for a fee, or both.
On occasion large quantities of drugs are found. Sometimes it is merely the leftovers from a holiday or business trip abroad. This may have occurred at a location where drug use is more widely tolerated by law enforcement than it is in the United Kingdom.
Committing the offence of drug importation can however result in severe consequences.
The crime of drug importation
Drugs are brought into the jurisdiction in a number of supposedly ingenious ways. For example, cocaine may be moved in its liquid form while disguised as something else. Drug ‘mules’ may swallow a number of pellets containing drugs of different kinds.
Naturally, the police and associated organisations are frequently uncovering these methods as they arise. This results in those who take the risk and are caught being charged and sent to prison for a significant term. This will be despite initial thoughts that the police or customs officers have been outwitted.
Which laws would I break?
The underlying offence is the breaching of the prohibition on the importation and exportation of controlled drugs. This is created by Section 3 of the Misuse of Drugs Act 1971. This prohibition is paired with the substantive offence. This is contained in Section 170 of the Customs and Excise Management Act 1979.
The maximum penalties
The maximum penalties for the offence of drug importation will vary depending on the type of drugs in question:
Class A, life imprisonment;
Class B and C, 14 years’ imprisonment;
Sentencing for drug importation
Various factors will alter the sentence imposed upon someone who either pleads guilty or is found guilty of this offence. These include:
the role played by the individual in the activity
the amount and character of the substance in question
their level of co-operation with the police.
The sentences here are generally heavy. Prison almost always follows for even the smallest quantity of drug. Sentences of between ten and twenty years, or even more, are common where the quantity is large.
There are however a large number of factors that might reduce the seriousness of the offence or provide valuable mitigation. It is essential that you choose a solicitor who will properly explore these on your behalf to ensure a proper reduction in sentence.
Case studies
In Gregory [2012] EWCA Crim 649, the appellant’s sentence of imprisonment was reduced from 8 years to 6 years. This was because the original sentence did not sufficiently reflect the appellant’s relatively minor role and the fact that he believed he was carrying cannabis rather than cocaine.
Conversely, the appellant in Burns [2009] EWCA Crim 1123 received an increased sentence upon a reference by the Attorney-General. In this case the sentence increased from 8 years to 14 years’ imprisonment. This was said to better reflect the fact that he had abused his professional role as a distribution supervisor by allowing cocaine importations.
There is a comprehensive sentencing guideline that judges will use in order to decide sentence.
If you are to be spoken to about an allegation of drug importation then the first thing you must to is take advantage of our free and independent advice in any interview under caution. We will be able to give you initial advice that might help with the direction of the case.
If your case is to go to court then we will make sure that your best case is before a jury at trial. Alternatively we will ensure that mitigation is obtained and properly presented on your behalf in order to make sure your sentence properly reflects your involvement.
You can find your nearest office by following this link and all of our phone numbers are answered 24 hours a day, every day of the year, to ensure that we provide you with emergency advice when you most need it.
Alternatively you can use the contact form below.
Contact
Category Archives: News
On 9 May 2018 the Sentencing Council, which is the body responsible for setting sentencing guidelines in England and Wales, has published proposed new guidelines in respect to public order offences. The consultation ends on 8 August 2018.
What public order offences are covered?
The guidelines will apply to the following offences, all of which are to be found in the Public Order Act 1986:
Riot
Violent disorder
Affray
Threatening or provocation of violence and the racially or religiously aggravated counterpart offences
Disorderly behaviour with intent to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
Disorderly behaviour causing or likely to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
Offences relating to stirring up racial or religious hatred and hatred based on sexual orientation
When will the new guidelines come in to force?
The proposed guidelines for public order offences are being consulted upon. As a result it is unlikely that any new guidelines will come into force before the end of this year at the earliest.
However, what we tend to see is that judges look at consultation guidelines, even when they are not supposed to. Sentences may begin to reflect the new guideline before it is in force. As a result it makes sense to keep a close eye on sentencing in this area of law.
What are the proposed changes?
These offences can vary greatly in their nature and in their seriousness. For example, affray, which covers the use or threats of violence which would make someone fear for their personal safety, may involve serious or sustained violence or a less serious incident where no one is injured.
The new public order offences guidelines aim to set out a clear approach to sentencing that covers the main factors that should be taken into account in assessing the culpability of the offender and the harm they caused.
For example, an offender with high culpability in the riot guideline may have used petrol bombs or firearms, been a ringleader in instigating violence or have been instrumental in escalating the level of disorder.
The guidelines also aim to encapsulate the wide-ranging harm that is caused by these offences. Individual members of the public may suffer physical injury, fear or distress. There might be damage to their property. Business owners may suffer loss of livelihood and damage to their premises.
Public disorder can inflict serious disruption and damage to local communities and police officers and other emergency workers may be attacked and injured. Incidents may also involve substantial costs to the public purse.
The guidelines also highlight other aggravating factors that would increase the seriousness of offences. This can include offenders inciting others to participate in violence, trying to prevent emergency services from carrying out their duties, causing injuries to police dogs or horses and using or possessing weapons.
Finally, the proposed guidelines also take into account trends in criminality and a social climate which has seen a rise in hate crime offending. The Council considered that a guideline on public order would be incomplete if it did not cover racially or religiously aggravated public order offences and those which specifically address stirring up of racial or religious hatred or hatred based on sexual orientation.
Will sentences for public order offences be longer as a result?
The Sentencing Council does not anticipate that sentence severity will increase, save for a couple of exceptions concerning fines.
Data exists on the number of offenders sentenced for public order offences, and the sentences imposed. There is, however, a lack of data on the categories of seriousness of current cases. It is therefore difficult to establish how current cases would be categorised across the levels of harm and culpability in the draft guideline.
The fear, therefore, is that these new guidelines may result in tougher sentences being imposed that will stretch an already underfunded prison service.
In the crown court, while a fine is not the most common punishment meted out, when they are imposed they tend to be very large. Before the Magistrates, any court fine imposed will still be a substantial share of weekly income.
Do I have to pay the court fine all at once?
Sometimes a court will order full payment (and may give a period of time for this to be completed), but in many cases, the court can order that you pay in instalments, usually weekly or monthly.
You will not be given time to pay your court fine (and therefore may be sent to prison forthwith if a fine isn’t paid) if:
in the case of an offence punishable by imprisonment, you appear to the judge to have sufficient means to pay forthwith;
it appears to the judge that you are unlikely to remain long enough at a place of abode in the UK to enable the payment of the fine to be enforced by other methods; or
on the occasion when the fine is imposed, the judge sentences you to an immediate prison sentence, custody for life, or detention in a young offender institution for that or another offence, or so sentences you for an offence in addition to forfeiting his recognisance, or you are already serving a sentence of custody for life or a term of imprisonment or detention.
Setting a default period
Section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 requires a court to fix a period of imprisonment in default.
Imprisonment in default is an extra term of imprisonment that you might receive if a fine is not paid:
“…the purpose of ordering a sentence of imprisonment in default is designed to ensure, so far as possible, that the defendant found to have realisable assets in the amount […] ordered, should pay that amount and should obtain no advantage by refusing to do so. That authority stems not only from previous cases but also from the statutory provisions themselves.” (R v Smith [2009] EWCA Crim 344).
The maximum term is dependent on the size of the fine imposed:
An amount not exceeding £200
7 days
An amount exceeding £200 but not exceeding £500
14 days
An amount exceeding £500 but not exceeding £1,000
28 days
An amount exceeding £1,000 but not exceeding £2,500
45 days
An amount exceeding £2,500 but not exceeding £5,000
3 months
An amount exceeding £5,000 but not exceeding £10,000
6 months
An amount exceeding £10,000 but not exceeding £20,000
12 months
An amount exceeding £20,000 but not exceeding £50,000
18 months
An amount exceeding £50,000 but not exceeding £100,000
2 years
An amount exceeding £100,000 but not exceeding £250,000
3 years
An amount exceeding £250,000 but not exceeding £1 million
5 years
An amount exceeding £1 million
10 years
Will a court always set the maximum term in default?
The period in default will depend on the amount of the court fine and where it falls within the banding. So, a fine of £55,000 would probably attract a default period nearer 18 months than two years. But this is not an arithmetical exercise.
What happens if I do not pay my court fine?
If you wilfully refuse to pay the fine, and all other enforcement options have been exhausted, you will be ordered to serve the default term in prison.
It is therefore very important that you make contact with your solicitor if your financial circumstances change and you are unable to pay a financial penalty. It is always better to try and resolve difficulties earlier than wait for enforcement proceedings to commence.
I would sooner serve the time than pay the fine, is that possible?
Yes, and no!
If you do not pay, then you will go to prison. The court will, however, always try to secure enforcement first. Imprisonment is not a free choice. Note also that in relation to some financial penalties, such as confiscation, imprisonment in default does not extinguish the requirement to pay.
How we can assist
The law concerning non-payment of fines and other financial penalties can be complicated so this article is intended to give only a very brief overview of the issues involved.
If you have any concerns about payment of your court fine or wish to discuss any other aspect of your case then please contact your nearest office. Details can be found here. Alternatively you can use the contact form below.
Contact
Category Archives: News
Newark criminal advocate Nikki Carlisle
Newark criminal advocate Nikki Carlisle was instructed to defend an allegation of disorderly conduct before Nottingham Magistrates’ Court. The trial was listed before a district judge.
Police officers change evidence in disorderly conduct trial
Two police officers gave evidence on behalf of the prosecution. In their original witness statements they had both described Niki’s client as shouting and swearing in the street. They described a number of other members of the public being present. Their view was that his behaviour would have upset these people. The officers went further to state that they were also distressed by the behaviour because he had been verbally abusive to them.
In a somewhat curious development, when the first officer came to give evidence he was unable to remember anything said or done by Nikki’s client. This surprising turn put Nikki’s client in a much better position.
The second police officer, however, departed from his statement by saying that the behaviour was far worse than originally described. He stated that our client had been aggressive and that he had been subject to “the worst verbal abuse that he had ever received in his life”.
The officer went on to give examples of the kind of the things our client had said to him. Nikki was able to play the bodycam footage that had been provided to us during disclosure. This showed that the defendant was not saying any of the things the officer had spoken of in evidence.
Bodycam footage undermines police evidence
Instead, it showed the second officer being sarcastic towards our client, goading him and then using what was clearly excessive force to arrest him. This included spraying him in the face with CS gas.
Despite this clear evidence, the officer tried to explain the difficulties away. He maintained that the abuse must simply not have been picked up by the body worn camera microphone. He claimed that our client had been resisting arrest and that he was in fear of violence.
Nikki addressed the District Judge in relation to two substantial points:
whatever the Judge made of the alleged conduct, he should not infer that members of the public would have felt harassed, alarmed or distressed without evidence of that
the only person claiming to have been so affected by the behaviour was the second officer who could not be called a truthful witness.
The District Judge found our client not guilty of disorderly conduct. The judge went as far as to comment on the unnecessary use of CS gas in this case. Our client is pursuing a police complaint.
Why instruct an criminal defence solicitor?
This case demonstrates a number of reasons why you ought to instruct a solicitor to defend criminal proceedings on your behalf. Although this was a minor matter when compared to many other offences, it was of great importance to our client.
Despite the nature of the offence we were successful in applying for legal aid funding to ensure his free representation in the Magistrates’ Court. You can read more about legal aid here.
We represent clients across the country from our offices in the East Midlands. You can find the details of your nearest office here. Alternatively you can use the contact form below.
