Over recent years there has been a vast increase in the number of second hand mobile phones being sold online through such sites as eBay or Gumtree. Such purchases may not be without risk as a client found when charged with making indecent images!
Chesterfield criminal defence solicitor David Gittins recently represented a client who had bought such a phone. He had been arrested and charged with possessing indecent images on his second hand mobile phone. David’s client was adamant that he knew nothing about the images. He maintained he was not aware that they were in his phone.
The year long investigation was followed by proceedings before Chesterfield Magistrates’ Court. At trial David successfully argued that there was no case to answer. As a result the charges were dismissed.
Free and independent advice in police interview
David’s client had been arrested in the summer of 2016 for unrelated matters. His mobile phone was seized by the Police and examined. The Police found a small number of indecent images on the phone. Understandably they wanted to interview our client about this.
He sought free and independent legal advice from VHS Fletchers and was represented by David during two separate sets of interviews. Our client denied the offence saying he knew nothing about the images. He was unable to comment about how they got to be in his phone, nor could he help with when they got there.
‘Making indecent images’
As a result the our client could do little else but deny the allegation. The police and prosecution were not happy with these denials so he was charged to Chesterfield Magistrates’ Court. The charge was making indecent images between two dates in 2016.
Making indecent images does not necessarily involve taking a photograph. Downloading an image and making a new digital file is sufficient for a person to be guilty of an offence. The offence is likely to be treated seriously by the courts and therefore a prison sentence is often imposed. Although the ‘maker’ of the image is unlikely to have met the child, it is serious because there is a child victim at the end of the chain of ‘makers’ who copy the image.
The Trial
David met with his client on several occasions to take instructions and give advice before trial. David’s analysis of the technical evidence showed that the prosecution could not show when the images arrived on the phone. In order to prove the offence the prosecution would have to show that our client was responsible for making indecent images.
The prosecutor could not show that the images were placed on the phone while it was owned by David’s client. Additionally, there was no evidence that the images had been opened and viewed since our client had owned the phone.
At no point during the prosecution was evidence called to challenge our client’s account that the phone was bought second hand. The prosecution simply sought to rely on a need by our client to explain the images. Our client, however, had the benefit of the burden and standard of proof and did not have to prove anything.
After the prosecution case had finished David considered the evidence that the court had heard. Because of this he decided to make an application of no case to answer. This can lead to a case being stopped before the defence case. It is possible in cases where there is no likelihood of a court finding a defendant guilty.
The Magistrates’ in this case agreed with David’s argument and the case against his client was dismissed.
His client was understandably delighted with this result. He had never been in trouble with the police before so kept his good name. He will hopefully be able to put the fourteen months that he had serious proceedings hanging over his head behind him.
Free representation with Magistrates’ Court legal aid
Legal aid is available for advice and representation before the Magistrates’ Court. It is dependent upon our clients satisfying the legal aid agency of the merits of their cases and that they qualify on their means. If it is granted then our advice and representation will be free of charge.
Contact a Chesterfield criminal defence solicitor
Chesterfield criminal defence solicitor David Gittins
Whatever the allegation that you face, you will want to instruct an expert criminal defence solicitor who will analyse the evidence in your case and prepare it accordingly. In cases such as this, it is important that any gaps in the evidence are identified and exploited to obtain the best result for you.
Please call us on out office number 01246 283000. Alternatively you can use the contact form below.
Contact
Category Archives: News
Chesterfield Crime Solicitor Kevin Tomlinson had to use all of his experience and persuasive advocacy to ensure that his client did not receive a prison sentence after his breach of a suspended sentence order.
Kevin’s client was charged with nine offences. Five of these were committed whilst he was subject to a suspended sentence order. The law is such that if an offence is committed during the lifetime of a suspended sentence a court must activate the suspended sentence. The only opportunity a person will have to avoid this is where it is successfully argued that it would be unjust to do so.
It was perhaps the case that in the circumstances that Kevin’s client found himself in, custody would seem inevitable. In the event, Kevin managed to achieve for his client what at first seemed impossible.
Allegations in breach of a suspended sentence order
Kevin’s client had been arrested in relation to a number of thefts from shops. Perhaps unsurprisingly Kevin’s client was a drug user. The offences were committed over a period of time, but he was interviewed about them by the police in a single interview.
In interview, Kevin’s client accepted each offence. Because of his record the police had kept him for court on a Saturday morning. Kevin represented him when he pleaded guilty to all of the offences.
The court had insufficient information to allow our client to be sentenced at a Saturday court. As a result the case was adjourned until later in the week for the sentencing hearing. Unfortunately, our client was remanded into prison to await sentence.
The sentencing hearing
At the sentencing hearing, Kevin set about securing information to put before the court in a bid to convince them that it would be unjust to send his client to prison for breach of a suspended sentence and the new offences.
Chesterfield Magistrates’ Court
Kevin took all the information that he would need to provide the court with detailed personal mitigation. He took the time not to rush through this important part of the process, resisting pressure from the court for the case to be called on.
After taking these instructions, Kevin’s next port of call was the probation service. The probation staff confirmed that our client was progressing well on his suspended sentence order in terms of trying to tackle his drug use.
As a result, Kevin had enough helpful information to allow him to argue that his client should not receive an immediate prison sentence but should be given a further chance. This was a credible argument even though there was a breach of a suspended sentence order.
Prison sentence avoided
Kevin’s client was due to be sentenced before the resident District Judge at Chesterfield Magistrates’ Court. Following the prosecution opening and some information from the probation service, Kevin then addressed the Judge.
He argued at length on behalf of his client. Kevin relied upon the reasons behind the offending, some personal mitigation, the good progress under the order and the short period spend in prison before sentence. In conclusion he asked the Judge to decide that it would be unjust to impose the sentence for breach of a suspended sentence order.
After listening to this mitigation the District Judge agreed with Kevin. He decided to impose a sentence which allowed our to retain his freedom. Kevin’s client was understandably delighted with the outcome and relieved to not face a custodial sentence.
Free legal aid funding in the Magistrates’ Court
Our client had the benefit of legal aid. for these hearings in the Magistrates’ Court. This means that our advice and representation of him was free of charge to him.
Instruct a Chesterfield criminal defence solicitor
Chesterfield Crime Solicitor Kevin Tomlinson
If you find yourself being investigated by the police or facing court proceedings then please contact us immediately. Our office number 0246 283000 is answered 24 hours a day, 7 days a week to ensure that you receive emergency free and independent legal advice if you are being interviewed by the police.
Advice and assistance in police interview will always be free of charge to you. If you case proceeds to either the Magistrates’ or Crown Court then we will give you the best advice as to whether you are entitled to legal aid or alternative ways of funding your case.
Alternatively you can contact us using the form below.
Contact
Category Archives: News
Domestic Violence Protection Notices and Orders
Domestic Violence Protection Notices (DVPNs) are commonly issued by police when attending incidents of alleged domestic violence.
Invariably, whatever the rights and wrongs of a situation, and frequently it is quite impossible for this to be correctly judged, it is the male who are the recipient of the Domestic Violence Protection Notices even where there are cross allegations.
The effect of Domestic Violence Protections Notices is to force the removal of recipients from the named property. This is for an initial period of 48 hours. This will then be followed by an application to the local Magistrates’ Court for a Domestic Violence Protections Order. This order can result in a person’s removal from the premises for a further 28 days.
The rationale behind this process is to give the supposed victim of domestic violence the ‘breathing space’ they might need to seek assistance.
Can You Challenge a Notice?
Domestic Violence Protection Notices are issued in a relatively informal way. Because of this, there is no realistic way to challenge them before they take effect. As a result, any later successful challenge will only result in a mostly pyrrhic victory.
You are able, however, to challenge the application for the Domestic Violence Protection Order. We will be able to assist you in that process.
The legal framework for Domestic Violence Protection Orders
The legal framework for these orders was recently considered by the High Court in the case of Kerr v Chief Constable of Surrey Police [2017] EWHC 2936 (Admin).
The facts in this case are typical of many of the cases that we see before the courts. The supposed beneficiary did not actively support the making of the order. She was Mr Kerr’s partner of eight years.
The High Court upheld the legislative scheme in its entirety, observing that:
‘…within the experience of a Magistrates’ Court, that victims of domestic violence can be equivocal in their views. There are many reasons why at any given point in time they may express some reluctance to seek to exclude the partner. As [Counsel] correctly observes, that is precisely the danger that this legislation addresses by allowing a short-term emergency order to be made for the protection of a victim of domestic violence, even in circumstances where the victim is not seeking such an order.’
Is Kerr wrongly decided?
There is no case law cited in the judgement so as a result it is open to argument whether the High Court considered the recent decision of Herrington [2017] 2 Cr App R (S) 327. In that case, where when considering whether to make a restraining order, the Court of Appeal observed:
‘‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with. Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.
It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself. The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make.
Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained. She told them unambiguously that she wants this order revoked.’
How Can We Assist?
When new judgements come along, they are often presented as offering the complete answer to a legal problem. In our experience, they seldom do. Consideration has to be had to earlier decisions, particularly ones that had not considered in any new case.
Because of this, where appropriate, we will be more than happy to challenge such cases. We can advance alternative arguments where there is a legal basis to do so.
If you are facing the prospect of a Domestic Violence Protection Order following service of a Domestic Violence Protection Notice please contact one of our expert criminal law solicitors.
Chesterfield Motoring Solicitor Kevin Tomlinson was recently instructed in a case where his client was at real risk of a driving disqualification. Kevin made a successful exceptional hardship argument on his behalf so a driving ban was avoided.
What is an Exceptional hardship argument?
All drivers will know that when they reach 12 penalty points they are liable for a minimum six month driving ban under the totting up procedure.
A driver can, however, avoid this disqualification if it can be shown that exceptional hardship would result from a disqualification. If successful, a driver will be able to keep their license even though they have reached 12 penalty points.
The concept of “exceptional hardship” is not exhaustively defined by the law. It does, however, have to be more than an inconvenience caused as a natural result of a driving ban.
Issues that could amount to exceptional hardship may include:
Loss of a job resulting in loss of accommodation
An inability to get to any work due to geographical and public transport restrictions
Loss of employment of third parties due to a businesses having to close
A driver will usually have to give evidence to the court on oath to support the exceptional hardship argument.
Travel to Norwich Magistrates’ Court
Norwich Magistrates’ Court
Our client faced three separate sets of proceedings before three different courts. It was important that Kevin ensure that all three cases were before a single court as his client wished to make an exceptional hardship argument to avoid disqualification.
This is because a successful argument cannot be put more than once in a three year period. As a result, had the exceptional hardship argument succeeded in one set of proceedings, it could not have been argued in the other cases.
In any event, this client’s case was particularly complicated. Kevin had to apply to set aside certain convictions and overturn a driving disqualification imposed in absence before all cases were finally listed before Norwich Magistrates’ Court.
Our client chose to instruct Kevin to travel to Norwich as he knew that he would put forward skillful legal argument on his behalf.
Our client left with 19 penalty points
Due to the nature of our client’s employment which took him all over the Country, he would have an argument to say that to disqualify him him cause exceptional hardship over and above that which will normally follow a driving ban.
Kevin advanced the exceptional hardship argument on behalf of his client. Even though by now his client had 19 penalty points on his licence, this was the only way he could avoid a disqualification from driving.
Evidence on oath to support exceptional hardship argument
His client gave evidence to the court about the difficulties he would face if he lost his licence. Perhaps significantly, he was also able to give evidence of the impact of losing his job on his partner and the risk of them losing their accommodation.
Fortunately for his client, Kevin made a successful exceptional hardship argument on his behalf. The court then chose to exercise its discretion not to impose a driving disqualification. This meant that our client could continue driving. There were, however, financial penalties and costs to pay as a result of these offences.
Kevin’s experience meant that he was unable to unpick the tangle of convictions to ensure that his client had an opportunity to avoid a driving ban. His persuasive advocacy skills were then able to secure the result his client needed.
Representation by way of an affordable fixed fee
It is unlikely that legal aid will be available for a case like this. Here, Kevin agreed a fixed fee with his client that included the expense of travel to Norwich.
In the event, this fee was a small price to pay in order that our client kept his driving license.
Contact a Chesterfield Motoring Law Solicitor
If you face a driving ban then you will require affordable advice and representation from an expert road traffic law solicitor. Chesterfield road traffic law solicitor Kevin Tomlinson can be contacted at our Chesterfield office on 01246 283000.
the easiest way to avoid problems is not to take any alcohol before you drive
be very careful the next morning and consider public transport if you have been drinking the night before.
We know, despite people being aware of the advice. people still make mistakes. In most cases this involves a momentary lapse in judgement from a person who has never been in trouble with the police before. A conviction for drink driving can have a serious impact on an individual and have a very real effect on their life.
We will try our best to minimise this impact where possible. This might be by fighting the allegation at trial or putting forward effective mitigation on sentence.
Chesterfield Criminal Solicitor David Gittins is regularly before Chesterfield Magistrates Court representing his clients in such cases. He was recently instructed by a client who had been involved in an accident whilst drink driving. As a result he faced a custodial sentence. Due to David’s assistance his client was able to avoid a prison sentence.
The Allegation
David’s client had been charged with drink driving following a road traffic incident. She had driven into the rear of a vehicle before driving off. She was followed home by a member of the public who had realised she was drunk. As a result the police were called.
David’s client had very little recollection of the incident. In police interview she accepted the evidence and because of this made admissions in interview.
She was found to have been just below three times the legal limit to drive. Being aware of the position she had placed herself in, she chose to instruct David before here first court appearance. As a result, David was able to give early advice and prepare the case in time for the hearing. Part of that advice was to remind his client that there would be credit for an early guilty plea. This is a reduction in the final sentence imposed.
Our client was a mother holding down two jobs to provide for her family. As a result, she was understandably upset about the risk of a prison sentence.
The Sentence
Following his client’s guilty plea to drink driving, David mitigated on her behalf. He was able to focus on the positive elements of his client’s character and future. Although an immediate prison sentence was a possibility, David argued that these positive aspects of mitigation meant that she could retain her liberty.
David’s client was received a Suspended Sentence Order for this drink drive offence because of this mitigation. This meant that provided she adhered to a curfew and undertook unpaid work in the community she would not be sent to prison. She also received the mandatory disqualification from driving.
Free legal aid in the Magistrates’ Court for this drink drive case
Due to the serious nature of this case and the real risk of prison and therefore loss of livelihood, free Magistrates’ Court legal aid was available. for the Defendant meaning all of David’s representation was free of charge.
Instruct a Chesterfield Motoring Law expert
Whether you face a police investigation for a road traffic offence or have court proceedings pending you will wish to instruct an expert motoring law solicitor. Please contact David at our Chesterfield office on 01246 283000.
Alternatively, you can contact a solicitor at one of out other five offices across the East Midlands or use the contact form below.
Contact
Category Archives: News
This was the response of VHS Fletchers to the consultation paper released by the Legal Aid Agency (LAA) following the notification on 25 October 2017 of the closure of Newark custody suite with effect from 6 November 2017. The suggestion was to merge the Newark duty solicitor scheme with the Mansfield scheme.
All Newark arrests from that date are taken to and processed at Mansfield Custody Suite. The residents of Newark had already lost one public resource, that being the ability of their police station to process prisoners. There was a very real risk that they would lose another – detainees receiving advice from solicitors local to Newark under the Newark duty solicitor scheme.
The consultation document invited responses to three alternative revisions to the Newark duty solicitor scheme and Mansfield scheme. Only one of those appeared to put first the needs of those from Newark who are arrested.
After the consultation document was published there were two important indications from the police that impacted upon the proposals:
Cases that were identified as Newark cases would continue to be charged and either bailed or held to appear at Nottingham Magistrates’ Court rather than Mansfield Magistrates’ Court.
The police would continue to contact the Newark Duty Solicitor Scheme in cases which are identified as “Newark arrests” and would ensure that the Duty Solicitor Call Centre (“DSCC”) was informed in all cases where the detainee was arrested for an offence committed in Newark.
Newark police station
It followed from these indications that Mansfield custody suite was able to and intended to identify cases that had historically been dealt with at Newark police station. As a result, they would be able to direct those who seek the advice of a duty solicitor to a firm local to Newark.
The proposed options for changes to the scheme could be summarised as follows:
That the Newark Police Station Duty Scheme was merged with the Mansfield Police Station Duty Scheme with effect from 1 January 2018 with members of an extended Mansfield scheme covering both Mansfield and Newark police stations.
That the Newark Police Station Scheme was retained as a separate scheme and Duty Solicitors on the Newark rota would be directed by the DSCC to attend at Mansfield police station.
Newark Police Station Scheme retained as a separate scheme and firms post 1 January 2018 could elect to join either the Mansfield police station duty rota or standalone Newark scheme (if retained under option 2)
The LAA indicated that they preferred option 1. The reason given was that options 2 and 3 were reliant upon the police being able to identify to the DSCC “Newark cases”. A more cynical view might be that the LAA and DSCC would have one less scheme to administer under option 1, resulting in an inevitable reduction in administration costs.
Fortunately, since the consultation document was published, the police set out their intention to continue to identify Newark cases at the point of arrest and charge.
As a result, there appeared to be no requirement for option 1 to be adopted unless there were ulterior motives on behalf of the LAA.
VHS Fletchers supported Option 2 for the following reasons:
This firm’s investment in Newark
When new legal aid contracts were to be awarded this firm chose to apply for a contract for a new Newark office. The closure of Newark custody suite was not anticipated.
Newark duty solicitor Ian Carter
The office is staffed with two crime solicitors local to Newark – Ian Carter and Barbara McDonnell. We have since recruited a further Newark based lawyer – Legal Executive Advocate Nikki Carlisle – signalling a clear indication to continue to develop our business there.
Of course, we are in business. The rationale behind the investment that we make in training and recruitment of duty solicitors is that they provide access to new work through the duty solicitor rotas. Option 3 supports those firms who, like us, have chosen to locate their offices in Newark in order to provide legal aid services to that particular community.
Newark deserves its own duty solicitor rota
Newark-on-Trent is the largest urban area within the Newark and Sherwood District. It has a population of just over 37 000 residents. Of the three firms in Newark that currently undertaking criminal Legal Aid work, only our firm has office both in Mansfield and Newark.
Should Option 1 have been adopted, Newark residents who are detained at Mansfield police station may very well be represented by a duty solicitor from a firm who only has an office in Mansfield. It is understandable that suspects will usually choose to have continuity of representation. This might be either whilst they remain on police bail, under investigation or following charge when the matter appears at court.
Prohibitive journey times
However, in seeking continuity, such clients would face a journey of 20 miles simply to see their solicitor to give instructions and take advice. By car that journey takes between 40 and 50 minutes. By public transport this time rises to 1 hour and 30 minutes for a single journey.
The same situation would of course have arisen in relation to residents of Mansfield who were represented by a duty solicitor who only had an office in Newark. It is true that many of those that require the services of criminal legal aid solicitors are vulnerable themselves and on a low income that would make such a journey very difficult.
It was our view that it was both unreasonable and unconscionable to expect those being investigated for criminal offences to have a return journey of three hours simply to see their solicitor. This stress and expense would be imposed on top of the emotional burden that the investigation of proceedings impose on any individual.
Local legal aid solicitors should be supported
Newark duty solicitor Barbara McDonnell
Option 2 supports those criminal legal aid firms who have chosen to locate their offices in Newark. This is in order to provide legal aid services to that community. It would mean that the arrangements within Option 2 could commence immediately following the closure of the Newark Custody Suite. Newark based firms would not have to suffer the inevitable financial hardship of not having access to Duty Solicitor work for a period of two months.
Such a decision might be seen as supportive of a legal aid provider base that it is acknowledged is financially fragile.
Perverse consequences of merging two duty schemes
The perverse consequences of Option 1 would have been to permit automatic access to Newark residents requesting the duty solicitor to firms solely based in Mansfield. Access to such Mansfield residents would have been granted to firms solely based in Newark.
Whilst some firms may have seen there to be a financial advantage in having a place on a merged duty scheme following the closure of Newark custody suite, this would have been to ignore the needs of local Newark residents. Financial advantage should never be allowed to outweigh the impact on those we represent and assist who are often ill-equipped to represent themselves.
On this basis, Options 2 and 3 would have been unattractive and unacceptable to clients where the duty solicitor may or may not have been based geographically convenient to them.
An increase in LAA costs?
Newark Legal Executive Advocate Nikki Carlisle
The LAA will have to budget for increased travel claims from Newark firms to Mansfield custody suite following the closure of Newark custody suite. An additional consequence might have been that the LAA had to fund more instances of advice and assistance in the police station.
It seemed likely that clients, once they discovered where their duty solicitor was based, would want to transfer to a local firm. Where the duty solicitor had been instructed a second fee may be properly claimable by the second local firm nearer to a suspects home address.
Clients to choose for themselves
Following the closure of Newark custody suite, if clients wish to choose a geographically distant firm then that must be a matter for them. To have a geographically distant firm inflicted upon them was a separate matter to be avoided where possible. The risk of a reduction in access to justice was apparent to all who considered the issue. The problem would be avoided by the adoption of Option 2.
Outcome of the Legal Aid Agency Consultation into the Newark Duty Solicitor scheme
The majority view of those who responded to the consultation was that the Newark Police Station Scheme be retained as a separate scheme. This is to be adopted by the Legal Aid Agency.
Duty solicitors on the Newark duty solicitor scheme will continue to be directed by the Duty Solicitor Call Centre (DSCC) to attend Mansfield Police Station upon the identification of a Newark detainee.
The police have confirmed that they will send out a further instruction to all the staff at Mansfield to make sure that they correctly identify with the DSCC suspects who fall under the Newark scheme. Although errors may occur, the police will actively monitor the position.
As a result, the Legal Aid Agency will issue a Newark rota for the period from January to March 2018. This will be subject to additional monitoring and review in late January or early February 2018 to consider if any changes are needed from April 2018 for the following six month rota.
Instruct a Newark crime solicitor
Despite the closure of Newark custody suite, the best way to ensure that you instruct a solicitor local to you if you are a Newark resident is to make sure you ask for VHS Fletchers if you are arrested and detained by the police.
If you know the police want to speak to you, contact us and we will be able to make the necessary arrangements for you to be interviewed.
Should you face proceedings at either the Magistrates’ or Crown Court then we will see you at our Newark office to take your instructions and give you expert advice.
You can also contact us by using the form below.
Contact
Category Archives: News
‘Laughing gas’ is more properly known as Nitrous Oxide. It was recently back in the news following a Court of Appeal ruling that the substance is controlled by the Psychoactive Substances Act 2016.
The Act makes it an offence to possess psychoactive substances with intent to supply. In a certain number of limited cases, just possession a psychoactive substance alone is also an offence.
The appeals came about because of some cases reported in August 2017. In those case, Judges had ruled that laughing gas remained exempt from control under the Act.
The issue for the appeal was whether Nitrous Oxide was a ‘medicinal product’. If it was, then the offence could not have been committed.
In the four cases before the Court of Appeal, two appellants had been convicted after trial. The remaining two had pleaded guilty.
Following the hearing of the appeals the court ruled:
‘We are satisfied that in the circumstances of these cases the nitrous oxide in question could not be categorised as a medicinal product and therefore was not an exempted substance. In our judgment, the matter is clear on existing authority.’
So, is the matter settled?
The key words in the judgment are ‘…in the circumstances of these cases.’
The Court of Appeal
So, to answer this question you need to understand a little more about the purposes of the Psychoactive Substances Act 2016. The Act applies to substances by reference to their effects. As a result there isn’t a list made up of substances and their individual chemical composition. The law is drafted to only criminalise their supply for the purpose of recreational drugs.
The argument has been put that because Nitrous Oxide is undoubtedly used for medical purposes, it would fall squarely within the medicinal products exemption in the Psychoactive Substances Act 2016.
The prosecution must prove an important ingredient of the offence. This is that any defendant in question intended to supply the substance for consumption for its psychoactive effects rather than for medicinal purposes.
As a result, liability under the Psychoactive Substances Act 2016 does not depend solely on the chemical composition or the effect of the substance, but also on the intent of the person possessing it.
In one of the appeals, the court held:
‘…the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.’
This case by case approach entails the possibility that different products with precisely the same chemical composition may fall within or outside the definition of medicinal product. This will depend on the circumstances of the individual case before the court.
Seek expert criminal advice if you are investigated for offences under the Psychoactive Substances Act 2016
These cases illustrate how complex the criminal law can be. Headlines in newspapers or online can be confusing, particularly when even the courts can come to different conclusions on the same set of facts. In cases such as this there will be differences of scientific opinion. It also takes some time for an appeal court to clarify the law.
In relation to Nitrous Oxide, it may be that further appeals will follow which may again alter the interpretation of the law.
VHS Fletchers crime and regulatory solicitors offices across the East Midlands
Our independent advice and assistance in a police interview under caution will always be free of charge to you, whether you are under arrest or being interviewed voluntarily, whether you are in a police station or at your home address.
Driving Disqualification? We can help you get your licence back
In some instances, it is possible to apply to a court and ask that a driving ban is ended earlier than it would normally be. How will you be able to argue to get your licence back early?
If your circumstances have changed since being disqualified, it is worth discussing with one of our criminal law specialists whether or not you can take advantage of this legal provision.
Is legal aid available?
Legal aid may be available subject to a means test. Alternatively we will be able to provide you representation on a private basis. This is likely to be by way of an affordable fixed fee.
What are the rules?
You can ask the court to reduce the period of your disqualification after you’ve been banned from driving after the following periods have expired:
2 years when your disqualification was for more than 2 years but less than 4 years
Half the length of the disqualification period where the driving ban was for between 4 and 10 years
5 years in cases where your disqualification was for 10 years or more
What about a ban following a second drink driving offence?
We are often asked by clients who have been disqualified for a second drink drive offence whether they are also able to apply to get their licence back early.
The answer to that question is ‘yes’. The application will however be complicated as the High Court has expressed the following view:
“I would only add that justices … may if they think fit regard a mandatory disqualification as one which they are somewhat less ready to remove than a discretionary disqualification.”
But it will depend, as always, on the individual circumstances of your case. The decision in Boliston v Gibbons (1995), for example, showed the High Court to be very sympathetic to the plight of the applicant.
What are the criteria?
The law states that:
“On any such application the court may, as it thinks proper having regard to—
(a) the character of the person disqualified and his conduct subsequent to the order,
(b) the nature of the offence, and
(c) any other circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application.”
As a result, what any applicant needs to establish is that there is some compelling reason why the ban should be brought to an end early. such examples include employment opportunities, reliance on a vehicle for caring responsibilities, personal immobility etc.
Will the application be opposed?
It is very rare for an application not to be opposed. Because of this we will work incredibly hard to ensure that an impressive argument is put before the court.
Unfortunately simply turning up and throwing yourself on the mercy of a court is unlikely to result in a return of your driving licence early.
If the application is refused, can I make a further application?
A further application is possible but you must wait for three months from the date of the refusal to make your next application
How we can help you get your licence back early
We will assist in preparing and presenting your application to the court. This will include taking your instructions and gathering any supporting evidence that you may need to strengthen your case.
Our experienced team have significant advocacy expertise before both the Magistrates’ and Crown Courts. As a result we are best placed to secure the return of your driving licence.
The trial was heard at Nottingham Crown Court and finally resolved in our client’s favour.
‘Investigation’ followed a familiar pattern…
The case followed a familiar pattern. The paedophile hunter had posted comments in various online chat rooms posing as a teenage girl. A person using the profile of our client had made contact and begun a sexually inappropriate conversation including sending explicit images. The paedophile hunter then arranged a meeting between the person and the girl.
Of course, if the person went to meet the child then instead he would be confronted by the vigilante. The confrontation would then be filmed and posted on social media. It is only then that the police are called.
…until nobody turned up at the meeting
This case was different, however, in that nobody turned up to the meeting apart from the hunters. They made visits to our client’s address but again to no avail. This did not prevent them posting their allegations on social media despite the fact they lacked the final part of the jigsaw to say who was responsible.
The police were eventually called and our client was arrested. Following interview he was charged with the attempts to contact children to send or receive sexual images. (((check the offences))))). It transpired that his profile had been used in three separate contacts with children.
Defence set out very early on in proceedings
Our client set out his defence very early on. He stated that he was not responsible for the messaging and that somebody else had been using his profile although he could not say who. On his behalf, Caine told the court and the prosecution that the mobile phone handsets used by his client and the paedophile hunters would need to be examined by the defence bearing in mind the defence.
The evidence provided so far was in the form of screenshots rather than the individual messages within the applications. An analysis of both the applications and WhatsApp conversations would be necessary. The prosecution’s own telecommunications expert confirmed that such an examination would be necessary to look at the source and provenance of the messages.
One handset missing – but whose fault?
Andrew and Caine became increasingly concerned about whether the defence would have an opportunity to examine the handsets. Eventually, in relation to two sets of allegations, the prosecution confirmed that they did not have the phone. The key witness, the paedophile hunter, gave a statement stating that he had handed the phone to the police. The police denied that this was the case.
It appeared unlikely that the hunter was telling the truth as neither his original statement nor that of the officers contained any reference to a phone being received into evidence.
Delayed access for our expert witness
In relation to the final set of offences, the police only permitted access a week before the trial. The report received cast doubt on police evidence that certain photographs to be found in the screenshots of chats were recovered from our client’s phone handset. Andrew had been unable to find them and nor could our expert.
Andrew prepared skeleton arguments. The first was in relation to whether the prosecution ought to be allowed to carry on with the first two sets of proceedings. There had been a failure by the police to secure key evidence. We had been unable to properly examine the device that was the source of the screen shots.
Secondly, the Crown needed to apply to amend the indictment to add the final set of charges. The evidence did not appear to support the addition of these new charges as key photographic images had not been found on our client’s handset, despite police assertions to the contrary.
No-show of paedophile hunter at trial
The prosecution succeeded in its application to add two new charges to the indictment.
However, the witness who was responsible for the missing handset failed to attend court on the first day of the trial. He left a message that he would not be attending, but when further information was sought he refused to answer his phone or respond to messages.
Wisely the prosecution chose not to proceed with the first five charges.
Significant failure in disclosure of evidence by prosecution
Time had to be spent in resolving the issue of the missing photographs for the remaining two charges. It transpired that when our expert had examined the phone of the other paedophile hunter the police had not prepared their own download so no detailed analysis was possible within the timescale allowed by the police.
Further, both our expert and Andrew had only been given half the download of our client’s own handset. The images recovered from the memory card had not been supplied. As a result, at lunchtime on the first day of the trial Andrew was served with two further discs. The first was the contents of the memory card. This amounted to over 36 000 images contained within 12 500 pages of PDF pages.
The second disc was password protected and was the download disc for the paedophile hunter’s phone.
Somebody else’s holiday photos
During the evening, Andrew began to look at the contents of the memory card. It became clear that the photographs in the main did not belong to his client. There were hundreds of holiday photos that did not show his client. As the phone was brought second hand then it was assumed that these were the photos of the previous owner. The photos were not in date order and not catalogued in a way that would allow them to be examined so Andrew abandoned his analysis.
Password given by police was wrong
Andrew was unable to view the contents of the password protected disc. The following morning it became clear why. The police had missed a crucial digit from the password. When Andrew was able to open the disc at the start of day two of the trial he was faced with a further 1800 thumbnail images that were again not catalogued in a way that permitted analysis in the timescale of the trial.
Legal argument on abuse of process
As a result, Andrew prepared a further argument that maintained that it would be an abuse of the process of the court to permit the prosecution to proceed. Alternatively, Andrew argued that all of the evidence of the chats and the photographs should be excluded for unfairness under section 78 Police and Criminal Evidence Act 1984.
The Judge agreed with Andrew’s abuse of process argument and stayed the proceedings. She agreed with Andrew’s submission that in cases that were begun by amateur detectives such as paedophile hunters it was incumbent on the police and the prosecution to ensure that thereafter the defendant had the protection of the relevant law and rules.
Here our client was unable to have his case properly presented, even in relation to the last two charges, as the prosecution had not made early disclosure of relevant evidence in a way that permitted it to be examined and challenged. Neither Andrew or the defence expert had been able to prepare a proper challenge to the evidence in the case. Our client was unable to have a fair trial.
Proceedings were stayed and our client was discharged. The judge made the point that even if she were wrong to have stayed proceedings, she would have agreed with the application to exclude all of the evidence upon which the prosecution could found the case. The case would have ended in a similar way for our client.
Crown Court legal Aid ensured free representation
Our client had the benefit of legal aid. This ensured that he did not have to pay for the representation of either Caine or Andrew. Further, he did not have to pay for what was an expensive analysis of the handsets in this case. More about Crown Court legal aid can be found here.
Instruct an expert in defending Crown Court cases
VHS Fletchers offices for Crown Court case preparation
We have lawyers skilled in defending Crown Court trials at all of our six offices across the East Midlands. Please find the office nearest to you here. VHS Fletchers will provide nationwide advice and representation, whether that is in police interview, before the Magistrates or at the Crown Court.
Alternatively you can use the contact form below.
Contact
Category Archives: News
Why are there more voluntary interviews by the police?
A suspect not having the benefit of a voluntary interview
Over a number of years changes were made to the way police conducted interviews with suspects. Proper safeguards were brought in to ensure that investigations were conducted fairly, particularly in regard to the recording of the questioning of suspects including their access to free and independent solicitors. This was a direct reaction to ‘confession’ evidence being obtained in far from satisfactory circumstances leading to miscarriages of justice.
Legal safeguards too expensive?
Unfortunately, all of those safeguards cost money. As a result, although there remains the right to speak to a solicitor and receive advice during interview, in many cases the police now create an atmosphere where if a suspect insists on their right to legal representation they are made to feel that the case will be treated more seriously, or that they will have to be arrested and taken into police custody, or that access to a solicitor will cause significant and inconvenient delays.
As a result, although the police will always offer a solicitor prior to a voluntary interview, the general tone is of the suspect not doing themselves any favours by requesting one.
If I’ve not been arrested are the police treating the allegation seriously?
There might be the expectation that the police ought to arrest those suspected of a criminal offence and take them to the police station to be interviewed. This will have the natural effect of concentrating a suspect’s mind on the gravity of his situation and will lead to serious consideration as to having a lawyer represent them in interview.
No matter how friendly the police they are speaking to you as a suspect
Unfortunately the ‘softly softly’ approach recently adopted by the police might avoid a person having the same set of worries. A request by a police officer for a ‘quick chat’, either at your home address, a room at the police station, or another place such as the rear of a police car, is because the officer is investigating you for an offence.
The police have reason to believe that you have committed an offence. They are investigating this allegation.
Why is a voluntary interview important?
What you say in a voluntary interview has the same weight as if you had been arrested an interviewed at a police station. It remains an interview under caution.
As a result, what a person does or doesn’t say might have the following effects:
lead to a conviction where there is no evidence other than an admission
result in a charge to court rather than an out of court disposal such as restorative justice
the police may issue an unwarranted caution where a person has not given clear denials
give an accused problems at trial before either the Magistrates’ or Crown Courts
The gravity of the situation is best shown by the fact that the police routinely deal with such serious matters as robbery, drug supply and serious sexual offences by way of voluntary interviews.
Whether you are interviewed while under arrest at a police station or as a volunteer in your front room this will not influence the decision as to whether you will end up in court. This will be influenced by the seriousness of the allegation and the strength of the evidence. This will include what you have said to the police in any voluntary interview.
Should I have a solicitor in police interview?
Perhaps a better question is why shouldn’t you have a solicitor in police interview? We have previously written on this subject here, but in summary you ought to seek legal advice for any of the following reasons:
a legal aid solicitor will always be free
it is your legal right to have a lawyer – use it!
our lawyers are experts in the field of criminal law
we are totally independent of the police
only the police delay your release, not your solicitor
a lawyer will give you time to think
we can negotiate an outcome with the police
the police are more likely to disclose the evidence they hold
having a solicitor does not make you look guilty
Instruct a criminal defence specialist now for your police interview
There is an element of truth in the police suggestion that having a solicitor will delay any voluntary interview. That is only true, however, if we are only called when the police are at your door or you have attended at the police station.
You are likely to know that you are to be interviewed under caution in advance. As soon as you find out, contact your nearest office to make the arrangement for one of our solicitors or accredited police station representatives to attend. We’ll need to know you details, where you are to be interviewed and when, and then we will make sure that we are there at the same time as the police.
Alternatively you can use the contact form below and we will then make contact with you.
arrested and charged with possessing indecent images on his second hand mobile phone. David’s client was adamant that he knew nothing about the images. He maintained he was not aware that they were in his phone.
examined. The Police found a small number of indecent images on the phone. Understandably they wanted to interview our client about this.
At no point during the prosecution was evidence called to challenge our client’s account that the phone was bought second hand. The prosecution simply sought to rely on a need by our client to explain the images. Our client, however, had the benefit of the burden and standard of proof and did not have to prove anything.
