The use of intermediaries during criminal trials is becoming increasingly commonplace. An intermediary may be used to assist any witness, including a defendant, give evidence.
The functions of an intermediary
“Intermediaries are communication specialists (not supporters or expert witnesses) whose role is to facilitate communication between the witness and the court, including the advocates. Intermediaries are independent of the parties and owe their duty to the court.”
Directing the Jury
At the trial, before the witness or defendant gives evidence, the judge should explain to the jury the following:
The need for an intermediary: e.g. by identifying the problems arising from the age or other difficulties of the defendant or witness.
The purpose of an intermediary: which is to assist in communication, among other things by helping advocates to ask questions in a way the defendant or witness can understand and/or assisting the defendant or witness to communicate his/her answers to the jury.
The intermediary is independent of the parties, is present only to assist communication and is not a witness and so is not permitted to give evidence.
The use of the intermediary must not affect the jury’s assessment of the evidence of the defendant or witness and is no reflection on the defendant or witness.
If the defendant elects to give evidence, it may be appropriate at this point to give more detail of any difficulties the defendant has, if those difficulties may affect the perception of the jury of the defendant’s evidence.
Assisting a Defendant
The current provisions concerning intermediaries are very much stacked in favour of assistance for prosecution witnesses, but case law makes it very clear that defendants are entitled to equal treatment.
Recent case law (e.g. Dean Thomas [2020] EWCA Crim 117) has placed further hurdles in the way of defendants seeking assistance, but we will always ensure that the legal rights of those we represent are fully protected. Appropriate applications for an intermediary will be made where necessary.
Giving evidence is daunting for most people, but particularly so for defendants facing the considerable pressure of being accused of an offence that they deny.
You can be assured that we will always act to enable you to present the best evidence possible.
Advocates and litigators experienced in dealing with intermediaries and vulnerable witnesses
This involved learning the particular skill of planning questioning suitable to the characteristics of a witness or defendant, taking into account intermediary reports and suggestions. It is potentially a difficult task to elicit correct facts from vulnerable witnesses where the ability to question is limited.
Our advocates will regularly use the Advocates’ Gateway Toolkit that provides assistance in identifying when a witness or defendant may be vulnerable, as well as helping in the formulation of questions for those who may have, for example, autism or a learning difficulty, or be vulnerable due to their youth.
Our litigators are experienced in identifying clients or their witnesses who may be vulnerable and benefit from the assistance of an intermediary.
Ask for our specialist advice
We provide nationwide advice and representation in criminal matters from our offices across the East Midlands. You can find your nearest office here have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.
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Category Archives: News
It’s funny how things change as the years pass by. Perhaps only ten years ago, if we were thinking about particular spikes in alleged criminal offending over the Christmas period, the one that would jump out would always be drunk driving.
These days it is common to come across drug driving due to advances in technology and the ability to detect an increasing range of substances in the body.
It is well documented that if people believe the chances of detection to be low, the temptation to commit a crime is higher. Most people know that there is considerable pressure on police resources. Therefore even when we see a police car on the roads, it is most likely already being deployed to an active incident, not cruising the streets looking for errant drivers.
Ironically, the story here tends to be related to the morning after.
The main event is often an otherwise minor road traffic accident attracting the attention of a passing police officer, resulting in alcohol and drug testing and an arrest for those still affected by the excesses of the night before.
Drugs can be particularly problematic as their journey through the body is much less predictable than alcohol, putting those users at risk for extended periods.
Road traffic law remains one of the most complex areas of criminal law, so if you are being investigated for any drug or alcohol-related driving incident or have been charged or summonsed to appear before a court, it is very much in your interests to contact us at the first opportunity. These offences will invariably result in a driving disqualification if you are convicted. The stakes can be enormous, particularly if you rely on a driving licence as part of your employment.
We will explore all available offences and mitigation and ensure you receive the finest representation.
Drug Driving – Sentencing Guidance
As a guide, where an offence of driving or attempting to drive has been committed and there are no factors that increase seriousness the Court should consider a starting point of a Band C fine, and a disqualification in the region of 12–22 months.
Where there are factors that increase seriousness, the Court should consider increasing the sentence on the basis of the level of seriousness.
The community order threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness. The Court should also consider imposing a disqualification in the region of 23–28 months.
The custody threshold is likely to be crossed where there is evidence of one or more factors that increase seriousness and one or more aggravating factors. The Court should also consider imposing a disqualification in the region of 29–36 months.
Drink Driving – Sentencing Guidance
The starting point applies to all offenders irrespective of plea or previous convictions.
Drink and drug driving defence solicitors
If you do make a mistake and find yourself in trouble, there is a lot we can do to assist you.
In some cases the police will want to interview you about the offence. If this is the case, whether under arrest or as a volunteer, always make sure you seek our free and independent legal advice. You can read about the benefits here.
The police must follow complex procedures to establish a case against you. Our lawyers will be able to analyse the evidence to ensure that the procedures have been followed. We can successfully challenge the evidence in your case.
A road traffic solicitor can also investigate issues such as ‘laced drinks’ which can raise the opportunity to avoid disqualification. We will also consider other ‘special reasons’ that could be raised on your behalf. This might include the shortness of distance that was driven.
Legal aid might be available dependent upon your means and the circumstances of your case. Alternatively, you will be able to fund your case through an affordable fixed fee.
Contact one of our drink drive solicitors at your nearest office if you are being investigated by the police or taken to court as a result of the Christmas drink drive campaign. They will, of course, be able to discuss and other driving matters that you face.
Alternatively you can use the contact form below to ask for a call about your case.
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Category Archives: News
Solicitor Nick Wright recently attended a Derbyshire Court User Group meeting where changes to remand courts in Derbyshire were presented as a fait accompli.
Lack of legal advisers
HMCTS has lost legal advisers locally. As a result there are insufficient legal advisers to run occasional courts for Saturdays and bank holidays in both Nottinghamshire and Derbyshire. As a result from 9 October all remand cases heard on those days will now be dealt with at Nottingham Magistrates’ Court.
The intention is that there be two courts sitting, one for Nottinghamshire cases and one for Derby cases. HMCTS is still considering whether a third court can be held on bank holidays.
Enquiries were made as to whether other local legal advisers were in a position to step in. Unfortunately the answer is ‘no’. The contracts for legal advisers have recently been changed and the raise in basic salary funded by a cut in overtime rates. Unsurprisingly, there is a lack of volunteers. No doubt morale will be as low in the Court Service as elsewhere in the justice system.
Although we were told that the courts are committed to filling the staffing gap, and there are currently six trainees in the region, it has been noted that there are no legal adviser position advertised locally on the relevant website.
Problems for Derbyshire defendants
The new arrangements simply ignore the geography involved in order to suit the needs of the court caused by a failure to recruit.
The most northerly firm clients to fall within the Derbyshire ‘catchment’ may be as far away as Glossop. Glossop to Nottingham is a round trip of 140 miles, over three hours by car.
How will those granted bail or sentenced on a Saturday return home, leaving Nottingham late on a Saturday afternoon? Who will fund the journey home when many defendants are dependent upon benefits?
It also ignores the reality that family assistance and input is often crucial to permit bail applications to be made. Addresses and background information are provided by family and friends attending court in person to speak to the solicitor. Again, these arrangements are likely to render this support far more difficult or impossible, to the detriment of our clients.
Problems for lawyers
Another reality is that the effect of the change is that Derbyshire lawyers will not be able to represent their clients in a cost effective manner. As a result, the likelihood is that their clients will lose continuity of representation and the benefits that go with that.
Aside from the time involved in travel and the uncertainties relating to the granting of legal aid for those detained, Even if legal aid were granted the Legal Aid Agency has reminded practitioners that Nottingham is a ‘designated’ court. As a result, no time can be claimed by lawyers travelling to the court. The journey from Glossop or Chesterfield or Buxton or Derby will not attract any payment.
In terms of the organisation of work within these firms, managers will be faced with an uphill struggle to persuade advocates to attend Nottingham on Saturday mornings for what will inevitably be longer days.
Hunt the client
Unhelpfully, Derbyshire defendants could be found in any number of places on a Saturday morning. A maximum of 10 clients will be taken from Derbyshire to the Nottingham cells on a Saturday. The expectation is that rather than be told where a client is, solicitors need to phone the Nottingham cells on a Saturday morning. If the client isn’t in the cells then it would seem likely they are still at a police station.
Defendants over the magic number of 10 are to be dealt with by CVP from either St Mary’s Wharf police station in Derby or Ripley police station.
CVP can be requested in advance, adding another layer of bureaucracy to Saturday morning courts. Practitioners are unlikely to know whether the application is granted until the Saturday morning. Blanket approval cannot be given.
There are limited phone lines that can be used to speak with those kept at the police station and it is hard to see how, 16 months into the pandemic, it is still though appropriate to make a decision on bail and therefore liberty with instructions taken over the phone.
And what of probation?
Unsurprisingly, Derbyshire probation officers will not be expected to serve the Saturday courts in Nottingham, further prejudicing clients.
Defence subsiding the justice system again
It can be seen that once again the defendants and the defence lawyers are meant to absorb the costs of a collapsing justice system. Where are local courts left were the six trainees not to remain but seek better working conditions in another sector post qualification? What if more qualified advisers leave?
There appears to be no credible plan, and the number of courts are simply reduced and reduced at the expense of clients, their families, their representatives and local justice.
This may present an opportunity for practitioners to say ‘no more’ and refuse to provide representation in these courts. It is easy to see how court service failures could be used to justify the closures of courts such as Mansfield and Chesterfield which could easily go the way of Newark or Ilkeston Magistrates’.
Only time will tell!
Category Archives: News
Duty qualified legal executive Nikki Carlisle
Duty qualified Legal Executive Nikki Carlisle was one of the staff who wasn’t furloughed when the Pandemic struck and it was apparent that volumes of work undertaken by the courts was to substantially reduce.
At the time Nikki kept a diary of the first week working under lockdown and it is perhaps a useful reminder of the pressure that she, and other staff, were placed under by the police and the courts, including new processes and technology.
The fact that our staff were able to continue to provide a quality service to clients in extremely difficult and potentially dangerous situations is a testament to their skills and professionalism. It might be fair to say that those involved in criminal defence were largely forgotten as other decisions were made.
Throughout we had an eye on the welfare of our clients and were able to deal with many voluntary police ‘interviews’ without the need for a formal recorded interview with police.
Nikki’s Diary
It would be an understatement to say that the Coronavirus pandemic is causing chaos in the world right now. We see it on the news constantly. We’re reminded of it every time we face the battle that is now the weekly food shop. It means that we’re unable to go to work as normal, or to visit our nearest and dearest.
Something that most people probably haven’t given a second thought to, is the impact that it is having on our criminal justice system.
I am one of the few people left behind at my place of work, as a result of the decision to furlough employees. This is a decision that most criminal defence firms have had to take, due to the fact that the courts are not running as normal. Employers have had to make this difficult decision to avoid redundancies.
I thought it might be an interesting insight for those who are not part of the criminal justice system, to see how we’re coping with these changes on a day-to-day basis.
Wednesday 1st April 2020
This is the first day of work “post-furlough”. There are only a handful of staff remaining, consisting of trainee solicitors, myself (a legal executive), solicitors, higher court advocates, and support staff. We each have our different roles to play in this strange new way of working, and on this particular day we have no idea what to expect.
My role consists of undertaking work at the police stations and at the Magistrates Court. The current position is that anyone who was charged with an offence and bailed to attend court, or who received a summons to attend court, will not have to come until a later date. The police are also supposed to be limiting the number of interviews they conduct face-to-face with suspects. The purpose of this is to prevent the spread of the Coronavirus. Courts and police stations are busy buildings, with a lot of people passing through every single day. In particular, we are also supposed to be complying with new “social distancing” rules which mean that we should be staying at least 2 metres away from people at all times.
The first job of the day is to deal with a youth who has been arrested and taken to a local police station, for an allegation of armed robbery. I received written disclosure from the officers in the case and then spoke with the client in a booth which contained a glass partition between us, so that I could take his instructions. The client had an alibi that he wished to raise for the offence. There was also a significant amount of work that the police still had to undertake. I made representations to the officers that it was not right at this moment in time to interview a suspect in a small room which would contain five people (the client, myself, an appropriate adult, and two police officers) so that we would not be able to maintain social distancing. The police needed to go and check out this client’s alibi and undertake further enquiries. I said that we would refuse to be interviewed at this time.
The officers refused to delay the matter and insisted on a face-to-face interview. They said that if my client refused to have an interview in a formal interview room, they would interview him in his cell. This was a young client who was vulnerable by virtue of his age. I decided it would be unfair to put the client in this situation and agreed therefore to a formal interview, but with only one officer into the interview room. No PPE (Personal Protective Equipment e.g. masks or gloves) was provided to me, the client, or his uncle who had attended as his appropriate adult. After the interview, during which we all sat as far apart as we could, and the client’s uncle kindly handed out antibacterial hand wipes, the client was released without charge, as there was insufficient evidence against him.
The frustrating thing about dealing with this case was the attitude of the police, and their complete disregard for the current situation and the safety of the people in the interview room.
Later that day I dealt with another case and had a completely different experience with officers from the same force. This case involved an incident where the client had been arrested for serious assaults. The officers told me that, if the client did not wish to be interviewed due to concerns about social distancing, they were happy to deal with the matter by way of a written statement from him. In this case however the client was very adamant that he wanted to give a full account in interview, which he was entitled to do. Again, we sat in an interview room as far apart as possible to comply with social distancing as best we could. During the interview, in his eagerness to demonstrate something to the officers, the client grabbed hold of my hand and came very close to my face. This was quite a distressing situation to be in. We are all aware that people can carry the Coronavirus without symptoms, and this is why social distancing measures are in place. It is scary to think that I could be exposed to the virus in the course of my employment and take it back home to my loved ones. Whilst the police continue to conduct face-to-face interviews, this is a situation that myself, and many others in the same job as me, will be faced with every day.
Thursday 2nd April 2020
After a day spent at the police station dealing with clients yesterday, today I found myself faced with a full day at court.
I attended my local court in the morning to deal with my remand cases, only to be faced with a very unusual scene. It transpires that today is the first day the court will be conducting hearings by way of Skype!
In normal circumstances, when I attend the remand court, I will obtain the paperwork by email in the morning, speak to the prosecutor about the case, and then walk across to the court cells to see the client. After consultation with the client I walk back across to the court building, and the hearing is conducted with all parties present in the room, and the client in the dock. Detainees from both Mansfield and Bridewell Police Station will be brought to the Nottingham Magistrates Court cells to be dealt with.
I am told today that the security staff who normally run the court cells are no longer working due to the Coronavirus. This means that the people who have been charged and kept for Court in Mansfield are still in Mansfield Police Station, and the people from the Bridewell are still in the Bridewell.
The difficulty with consultations arises when we are told that the Bridewell have one phone on which solicitors can speak to their clients, in the cells, to ensure the consultation is private.
There are approximately 7 solicitors at court, with 15 or so clients to deal with between us. This means that each of us will have to wait to speak to our clients, for however long it takes for the previous solicitor to finish speaking to their clients. This will hold the court up and cause massive delays in dealing with the workload.
Eventually we are told by the Bridewell that we are able to attend the police station to speak to our clients in their secure consultation booths to speed up the process. Whilst this is not ideal, as we are supposed to be avoiding going into police stations where at all possible, we feel obliged to do this in order to prevent delays in the court room and to prevent delays in our clients being released from custody.
I have two clients to see, and I see them both in the consultation booths. The first is the client that I had represented the previous day for serious assaults. The second is a client who was unrepresented in interview and has now been charged with serious drugs offences. After speaking to them both, I head back over to the court building to deal with their cases.
This is the first time I have ever used Skype, and after creating an account I sit at the back of court to observe other solicitors and see if there are any issues I need to be aware of before my own cases are called on.
The District Judge has a laptop with Skype on, as does the legal advisor, the prosecutor, and the defence solicitor. The defendant is being linked in via Skype on a laptop from the police station. There are some significant technical issues, which cause awful screeching feedback on numerous occasions, seemingly due to the number of users being present in one room. When my cases are called on, I move to another room within the court building and link into the hearing session. This seems to do the trick. One hearing goes without a problem, and the other is put over to the afternoon session due to lack of court time.
By the time I return in the afternoon another client has been arrested on a warrant, so I repeat the process again with him and conduct my final two hearings via Skype, again from a different room in the court building, with no issues at all.
As I leave court, I receive an email from a colleague, containing the new Interview Protocol which has been prepared by various parties to the criminal justice system (the CPS, the NPCC, and the Law Society to name a few). This is a protocol that MUST be followed by us all. It is an exciting read. It means that very few interviews will be conducted in person, meaning that we will be less at risk on a day-to-day basis.
Friday 3rd April 2020
Today was a frustrating one. After having received the new protocol the previous evening, which said that where possible interviews will be conducted remotely (officer emails us disclosure about the offence, we conduct a private conference with the client via telephone, and then use software such as Skype to be present in the interview) I received a call very early in the day to say one of my clients was at a local police station, having been arrested for a shop theft and an assault. I asked for disclosure to be emailed so that I could have my private consultation with the client. It transpired that this police station has no facilities to allow a private consultation with the client remotely.
So, despite having been told at 4.30pm yesterday that I would only have to attend the police station for the most serious offences, I find myself in a police station for two very low-level offences. Which it turns out, have both been caught on CCTV.
I spoke to my client and told him that I had seen the CCTV. He was happy for me to put forward a statement on his behalf saying that he would refuse to be interviewed about the offence, that there was sufficient evidence to charge him, and there was no point in putting us all at risk in an interview.
Frustratingly, I had to argue about this. Neither the officer dealing with the case, nor the custody sergeant, were even aware of the new protocol. Having anticipated this (call it a hunch), I had printed off two hard copies of the protocol to hand over to them. Having read the protocol, they still tried to insist on an interview. I explained that the protocol was quite clear, and under no circumstances would my client be interviewed.
My client was charged with the offence and was to be put before the court via Skype that afternoon.
As I was leaving, I was told that another client required my representation. This was another client who had committed offences which were caught on CCTV. This time the sergeant knew what I was going to say before I even said it, and this client was also charged to be put before the court that afternoon, without an unnecessary interview.
I left the station wondering why the police were still so insistent on interviews. At a time when we are all at risk of catching the Coronavirus, when we are encouraged to avoid interaction with other people where at all possible, some police officers seem to have forgotten that they are not immune to this virus, and that any of us could be carrying it without symptoms. It is not only in my interests and my clients interests to avoid unnecessary interviews, but also in the interests of officers as well.
I travelled to the office (where I am still able to work as I am the only person in the office) from the police station, in order to connect to the court via Skype to represent the two clients. The hearings again went without a hitch.
I have now conducted five hearings via Skype and although I would much rather conduct hearings in person, it is becoming less daunting. I am still very keen for things to get back to normal.
Saturday 4th April 2020
It was my turn to cover the weekend court session this week. I attend to cover court duty, meaning that I represent, free of charge, whoever requires representation but doesn’t have their own solicitor. I also have another client to deal with who has been arrested on a warrant.
This session is significantly more stressful than the previous two Skype court sessions I have dealt with. Firstly, the legal advisors covering court this weekend have not had to conduct hearings via Skype yet, and so they are learning the ropes themselves. Secondly, I have two cases, and they are in different court rooms.
After seeing my first client in consultation, I am about to see my second client when a custody sergeant tells me that the court have just called on my first client. At that exact moment I am in a different building, with four sets of secure doors to get out of before I can get over to court to conduct the hearing. I have no way of contacting the court to tell them I am about to see another client, because it is a Saturday so there is no one manning the court phones. I have no choice but to make a run for it. It takes me some time to get out of the Bridewell, through three sets of locked doors, before I then sprint across (in my suit and heels, no less) to the court building to join the court hearing session. After that hearing is over, I then have to head back over to the Bridewell to see the second client.
Technical issues mean that my second hearing has to be conducted using the camera on my laptop to Skype into the hearing but using the microphone on the legal advisor’s laptop so that the client can hear me.
I am very happy when I am able to leave the building after this stressful court session.
Monday 6th April 2020
Today was spent in the office catching up on my paperwork for the last few days. It has been a lot busier than expected at work since the furlough and I have to fill out reports for each police station attendance and court hearing, apply for Legal Aid to cover the costs of the client’s representation, and also write to all of the clients with the outcomes of their cases. Between catching up on paperwork, responding to emails, and dealing with client queries, the day actually goes alarmingly fast but much less stressful than last week!
Tuesday 7th April 2020
Today I had the unenviable task of undertaking diary management. As previously mentioned, the court has decided to not deal with “bail” cases for the foreseeable future. This means that I have to go through the court diary, identify all of the cases which will be adjourned, contact the court to find out the new hearing date, insert that date into the diary, and then write to the client providing them with the new date. It’s one of the less interesting aspects of the job but very important to make sure that we know when the clients are in court, and most importantly that the clients know when they’re in court!
And on the plus side, I haven’t had to go into any germ ridden police stations.
Wednesday 8th April 2020
I had a very successful day today, in terms of my ongoing battles with the police in enforcing the new protocols.
The fun began at 08.00 when the police contacted me to say they were ready to interview a client about an offence of shop theft. As per the new protocol I insisted that the disclosure be emailed to me. Once again, the officer didn’t seem to know what I was talking about but was happy to oblige anyway. The disclosure was that the client had been caught stealing items from a shop. He had been stopped by security in possession of the goods and the police arrived a short time later. I rang the custody sergeant and asked to speak to my client on the mobile phone in his cell. I was told that the phone was exclusively for use for the purposes of court hearings, and that I would need to come to the police station to see the client. Furthermore, I was told that he was displaying symptoms of the Coronavirus and I would have to speak to him through the hatch at his cell door!
Bearing in mind the time of day, I insisted that I be allowed to speak to the client on the mobile. Court did not start for another two hours, and under no circumstances would I be coming to speak to a client through the cell door. After some arguing the custody sergeant eventually relented. I spoke to the client who was happy for me to refuse interview on his behalf, on the basis that there was enough evidence to charge him already. He was charged and bailed for the offence.
Throughout the course of the day I successfully dealt with three other police station cases remotely. Disclosure was emailed to me by the officer, I spoke with the client over the phone, and then I emailed statements to the officers based on instructions that the client had received.
Whilst this might seem like a relatively easy way of dealing with cases, it is actually very time consuming and I am finding that the cases are taking just as long to deal with, as if I was actually attending the police station in person. The bonus of course being, that neither myself nor the clients are being put at risk of infection unnecessarily.
There is a WhatsApp group which contains the people who are still working. It’s a good way to find out what everyone is able to cover in terms of police stations and court cases, and also to report back to each other about how things are going in terms of the protocol. I am pleased that I’ve been able to report a fully successful day to my colleagues, with all matters dealt with remotely. There is still a lack of understanding from a lot of officers and custody sergeants about what is expected of them but I’m confident that if we keep battling on, we’ll be able to keep ourselves safe.
Thursday 9th April 2020
The early morning was a relatively quiet one, again spent catching up on paperwork from the previous day.
Mid-morning, I received a call to say that a case was ready to deal with at the police station. I spoke to the officer on the phone and he gave me verbal disclosure about the incident. I asked to speak to the client on the phone and was told again that the mobile phone was in use for the purpose of court. This time, due to the time of day, I accepted that. The officer said that there was no other way for me to have a private consultation with the client, other than to attend in person. In accordance with the new protocol I made representations to the officer that they were in breach of the Police and Criminal Evidence Act by not being able to provide facilities for confidential legal advice, and given that this case was not a serious one warranting immediate attendance, they should release the client immediately on bail to be interviewed at a later date. The officer agreed with my representations and the client was bailed a short time later.
I then received a call from a client who said that he and his brother were wanted by the police. An officer had contacted them to ask them to attend for a voluntary interview at the police station, and they wanted me to represent them. I discussed the protocol with the client, who was happy to deal with the case remotely if possible. I ran this by the officer who said that he would like to email me disclosure about the offence and a list of questions to put to the clients, and he would like the answers to be emailed back to him. This is a way in which slightly more complex matters can be dealt with under the new protocol. This means that the police can ensure that all of the questions they want to put to clients are dealt with, and still prevents the need for us to put ourselves at risk by attending the police station in person.
In the afternoon I attended court to deal with an application by the prosecution to adjourn a trial, and also a bad character application. These were both cases I was looking after on behalf of my colleagues who have been furloughed.
The District Judge at Court has been sitting every day, including Saturday, and has made positive comments in recognition of the hard work we are all putting in to keep the system going despite the difficult situation.
It’s little things like this which make it all a bit easier. Today’s advice; “keep trucking!”
Friday 10th April 2020
Today was Good Friday! I had most of the day off but was on call in the evening, covering Mansfield and Chesterfield area. This runs from 6pm tonight until 6pm tomorrow. I also held the out of hours office phone for the evening. Luckily, I didn’t have to deal with any police station cases myself. My colleague who was also on call however, covering Nottingham and Derby, was not so lucky. He attempted to deal with a case at the Bridewell Police Station by telephone but was told that there was no facility for the client to have a private consultation with him other than in person. He attended the police station for instructions, and luckily was able to deal with the matter by way of a written statement. The client was then released without charge due to insufficient evidence.
It is a shame that the facilities are not consistently in place for clients to have confidential advice on the phone. This is yet another example of someone going into a police station, putting himself and his family at risk, when the matter could quite easily have been dealt with in another way.
There doesn’t appear to be any consistency at all, and it’s incredibly frustrating.
Saturday 11th April 2020
Today I was still on call until 6pm and had a jam-packed day.
I managed to successfully deal with four police station cases by telephone, two at Mansfield and two at Chesterfield. Both police stations have the facilities now to enable clients to speak to you in their cell on a portable phone. In all cases the officers emailed me disclosure about the offence(s), I spoke to the clients on the phone, and then emailed over written statements.
The final case however, required an attendance in person. This was a voluntary interview for a historic offence. The police were keen to have the matter dealt with soon, however accepted that due to the age of the offence it wasn’t urgent that it be dealt with today, and if the client was happy for the matter to be postponed then they would postpone it. I spoke to the client over the phone. He was incredibly anxious, and already travelling to the police station. The stress of having the allegation hanging over him was causing him so many difficulties that he really did want to be interviewed and have it over and done with today. I therefore attended the police station to represent him. I was given written disclosure by the officer and was pleased that not only did the officer provide me with a face mask and gloves, but she, her colleague, and the client, also wore a mask and gloves. We each sat with our chairs as far apart as possible. In the circumstances, although not ideal, it was the safest way the interview could have been conduct and I was pleased with the attitude that the officers displayed in this case. The client was pleased to have the matter resolved that day.
I can only hope that other officers will all have the same attitude as this particular officer moving forward.
How we can help
We hope that the above demonstrates how hard we worked on behalf of our clients in extremely difficult circumstances. We exercised judgement as to the safest way for our clients to be dealt with within the justice system, often battling with police intransigence, particularly in the early stages of the virus.
A vast number of cases are awaiting a criminal trial that will rely, to a greater or lesser extent, on the admissibility of communications made via the supposedly highly encrypted Encrochat service.
The Court of Appeal has now issued a ruling following preliminary rulings at Liverpool Crown Court. Whilst this ruling does not mean that guilty pleas are inevitable, for some defendants it will nonetheless present a significant hurdle for them to surmount.
The main question was whether the communications were intercepted at the time they were being transmitted or, as the judge found, were recovered (intercepted) from storage. If the judge was right, subject to a number of subsidiary arguments, the evidence would be admissible.
The EncroChat material was obtained by a Joint Investigation Team (JIT) of French and Dutch investigators and prosecutors by interfering in the EncroChat communications system. It was then supplied to the United Kingdom authorities where it was used in a large number of investigations, including the one which led to the present case. The judge was required to hear evidence about how this occurred, and then to make findings of fact. He then had to apply the United Kingdom domestic law governing the admissibility of such material, which is found in the Investigatory Powers Act 2016 (“the 2016 Act”).
The 2016 Act adopted a domestic law framework which is unique in Europe and which resembles previous regimes. Historically, intercept material (classically phone tapping, but not limited to that) could be lawfully obtained by the authorities. Subject to a number of immaterial exceptions, it could not be used in evidence in proceedings but was reserved for intelligence use. The policy justification for that approach has been debated on many occasions and centres around protecting sensitive capabilities and wider operational and practical concerns. All were discussed in Intercept as Evidence, December 2014 Cmnd 8989 which was the report of a review of Privy Councillors provided to Ministers. In many other jurisdictions, including France and the Netherlands, there is no blanket prohibition on the admission into evidence of intercept material. The 2016 Act superseded the law found in the Regulation of Investigatory Powers Act 2000, which itself replaced the Interception of Communications Act 1985. Major changes between the current regime and the one established in the 2000 Act concern the new regulatory and supervisory system established by the 2016 Act. The law relating to admissibility of intercept material, and the definition of what is and is not intercept material also changed in important ways.
The essential point before the Court of Appeal was the submission, rejected by the judge, that the EncroChat material is intercept material and inadmissible in criminal proceedings because of section 56 of the 2016 Act, and further that it was unlawfully obtained under a Targeted Equipment Interference warrant, when its obtaining should have been identified as a kind of interception which would require a Targeted Interception warrant. Targeted Equipment Interference warrants are governed by Part 5 of the 2016 Act and may produce material which can be used in evidence. Targeted Interception warrants are governed by Part 2 of the Act and the product is inadmissible in evidence in almost all criminal proceedings, including these. The judge found that the EncroChat material in this case was obtained under Part 5 warrants. These were approved by Sir Kenneth Parker, a Judicial Commissioner, on 5 March 2020, and Sir Brian Leveson, the Investigatory Powers Commissioner, on 26 March 2020, prior to the obtaining of the EncroChat material. The second warrant was needed in order to widen the scope of the first for reasons which are not material to the issues before us. The issue is whether that approach was correct, or whether on a true understanding of the way the data were obtained, and of the 2016 Act, they comprised material obtained unlawfully under the wrong warrant and, in any event, were inadmissible.
The prosecution submitted that:
i) the EncroChat messages were admissible and fell within the exception provided by section 56(1) and schedule 3 paragraph 2 of the Act because the messages were “stored in or by the system” at the time when they were intercepted; and, in any event,
ii) that the material was not obtained as a result of “interception related conduct” because none of the five classes of such conduct (as contained within section 56(2) of the Act) applied to the present case, alternatively it was not conduct carried out in the United Kingdom within the scope of section 4(8) of the Act.
The key question was whether at the relevant time the communications were “being transmitted” or were “stored in or by the telecommunication system.” The judge found the latter to be the case. The EncroChat messages were properly regarded as falling within section 4(4)(b) of the 2016 Act and they had been obtained in accordance with a Targeted Equipment Interference warrant. He decided that for the following reasons:
i) At the relevant time when the messages were made available they were not “being transmitted;” it was clear from the evidence in relation to the data exfiltrated from the receiving device that the data was not made available whilst being transmitted. The incorporation of the nickname for the sender from the data held in the receiver’s device demonstrated that the transmission process of the data had finished. The judge indicated that he had no trouble in concluding that the EncroChat data was not being transmitted at the time that it was taken and was properly to be regarded as “stored in or by the system (whether before or after transmission)” and subject to section 4(4)(b) of the 2016 Act. The judge ruled that he did not consider that the distinction between RAM and Realm as described by the defence experts equated to the distinction between “being transmitted” and being “stored” as set out in the statutory provisions. The defence approach sought to extend the notion of transmission well beyond anything which was contemplated by the 2016 Act.
ii) The Equipment Interference Code of Practice was published pursuant to Schedule 7 of the 2016 Act and was admissible as evidence in criminal proceedings. It addressed the exercise of functions under Part 5 of the 2016 Act and the authorisation of Targeted Equipment Interference warrants and their operation. The judge considered that these provisions from this Code of Practice were consistent with the conclusions that he had already made in relation to this issue.
iii) Having considered the provisions of section 99 of the 2016 Act, which contained the power to make a Targeted Equipment Interference warrant and the scope of such a warrant, the judge decided that the interceptions were carried out in accordance with the warrant that had been obtained. The warrant application accurately described the way in which the implant was to operate and the warrant authorised what was then done. This was a finding of fact set out in paragraphs 161 and 162 of the judge’s ruling. It was a finding of fact to which he was entitled to come, and there is no challenge to it in this appeal.
What did the Court of Appeal rule?
The Court held:
“We agree with the judge. The communication is that which is transmitted. What remains on the device is not what has been transmitted, but a copy of it or what, in older forms of messaging, might be described as a “draft”. That is so however quickly after transmission the obtaining of the copy takes place, or even if the copy is extracted while the original encrypted communication is being transmitted. The fact that what was obtained was an unencrypted message, means that what was on the phone, and what was intercepted, was not the same as what had been transmitted because what had been transmitted was encrypted. It cannot therefore have been “being transmitted” when it was intercepted: it can only have been “being stored”.
That being so, the harvesting was interception but was rendered lawful by the Targeted Equipment Interference warrants issued under section 99 of the Act.”
and that:
“We have concluded that the only substantial question which the judge was required to answer was whether the EncroChat material was stored by or in the telecommunications system when it was intercepted. Like him, we consider that these communications were not being transmitted but stored at that time. That being so, the appeal is dismissed.”
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Category Archives: News
Recent news coverage suggests that the Metropolitan Police will be pushing for the prosecution of the more than 1,100 people arrested during last month’s Extinction Rebellion protests.
The environmental protests across London caused massive disruption in certain parts of the city. There is a risk that they may be set to spread across other towns and cities over the coming weeks and months.
Public protest has always been a legitimate and important part of the democratic process. As such, these rights are enshrined in law.
An important question remains, howver. How do the police balance the right to protest against the rights of other people to go about their lives unimpeded?
Why have people been protesting?
Extinction Rebellion has organised the protests. This is a group concerned about the environmental destruction of our planet.
Frustrated that other attempts to force change in governmental behaviour have failed, they have resorted to a new form of peaceful protest. On its website the group claims:
‘Civil disobedience works when it’s peaceful, respectful, disruptive and undertaken en masse. We don’t want to disrupt people, but our Government’s failure over the last 30 years leaves us no choice. If we had functioning democracies, we wouldn’t need to. We’ve tried petitions, marches, letters, reports, papers, meetings, even direct actions; and emissions have continued to rise. Governments prioritise the short term interests of the economic elites, so to get their attention, we have to disrupt the economy. They have left us with no other option.’
In London the protesters blocked major roads and bridges, leading to significant chaos and disruption.
What was the police response?
The Metropolitan Police set out the dilemma during the protest in this way:
‘The serious disruption the Extinction Rebellion demonstrations are causing to people in central London and beyond is unacceptable and we completely understand the concern it is causing to those who are disrupted by it.
Ultimately, the Met has a duty to balance the rights of those engaged in protest and who are acting within the law, against the needs and rights of Londoners to go about their daily lives with minimum disruption. Where people are not acting within the law we continue to arrest them, and we anticipate arrests continuing to rise. We are also working closely with partner agencies, Transport for London, British Transport Police, City of London Police, City of Westminster and the Mayor’s Office, as well as the business community.
…we will have had more than 1,000 officers on the streets policing the demonstrations. This is putting a strain on the Met and we have now asked officers on the boroughs to work 12-hour shifts; we have cancelled rest days and our Violent Crime Task Force (VCTF) have had their leave cancelled. This allows us to free up significant numbers of officers whilst responding to local policing. We would also like to reassure people that we have ring-fenced the VCTF so we retain the capacity to deal with any unrelated violent incidents.
However, the protesters need to understand that their demonstration is meaning officers are being diverted away from their core local duties that help keep London safe and that this will have implications in the weeks and months beyond this protest as officers take back leave and the cost of overtime.’
Was anyone being arrested?
It is an almost unique feature of this protest that people are aware of the risk of arrest and were willing to be arrested – this ironically presents an incredibly difficult policing challenge.
On this issue the police said at one stage:
‘…we have arrested more than 460 people, the large majority for breach of Section 14 [of the Public Order Act 1986) and obstruction of the highway. Of those arrested, so far eight people have been charged with those offences. At this stage it is better for us to keep our resources and custody capacity moving and flexible than leave protesters sitting in cells for up to 12 hours before going to court for what, although highly disruptive, are lower level offences.
So everyone else arrested has been released under investigation and will be brought back to be formally interviewed and charged as appropriate in due course. We are aware that means some protesters immediately return to the area to resume their activities; those people will be arrested again.’ (By Saturday 20th April the number of arrests had risen to almost 800, and eventually to over 1100).
Will all those people be prosecuted?
Although this still remains to be seen, it is clear that the police wish all those they believe to have been involved in illegal activities to face court proceedings. This in turn could lead to any number of contested prosecutions that would in turn place an immense strain on the criminal justice system.
As a result, many commentators think that those released under investigation will face no further action.
Are there any legal defences to these charges?
There are several defences potentially available. The right to protest peacefully is not an absolute one. Case law is generally unhelpful. There are some developing areas of legal challenge and these are the ones that defence lawyers will be concentrating their efforts on. Law is a living instrument and must develop as society responds to concerns such as the ones raised by these protesters.
We anticipate that there will be a good number of legal challenges flowing from these protests.
People must, however, be prepared to face arrest, prosecution and possibly a criminal record and must individually decide whether that is a price worth paying.
Contact a specialist in protest law
Kevin Tomlinson
Our staff have a wealth of experience dealing with a wide range of protest law related offences.
Both Kevin Tomlinson and Gavin Haigh continue to be contacted by members of protest groups in order to advise and assist individuals across the country.
Rob Lowe
Clients are impressed with the dedication of both Gavin and Kevin to their defence. We have a willingness to visit the site of any allegations where necessary.
David Gittins
On occasion this has included standing up to landowners who attempt in intimidate them and hinder the preparation of cases. Their representation of individuals means that they are regularly recommended within the Protest Community.
Protest law is an exceptionally complicated area of law but our solicitors David, Kevin, Gavin who are ably assisted by Chesterfield accredited police station representative Rob Lowe have a history of successfully representing people accused following a wide range of protests including:
Anti-fur protests
Anti-hunt protestors
Aggravated trespass offences
Protecting Badger Setts
Obstruction of the Highway offences
Anti-fracking protests
Animal right activists
climate change protests
international law and human rights protests, such against use of certain plant machinery in palestine
The types of cases dealt with include:
aggravated trespass
obstruction of highway
s241 TULRA 1992 (
s 14 Public Order Act (conditions on assemblies and processions)
Given the importance of protecting the NHS, it is likely that the police may take a harder line as the crisis worsens. There is, however, a genuine concern that the police are imposing their own restrictions on individuals that aren’t present within the legislation. Alternatively, they are applying an over-zealous interpretation of the law.
Restrictions on movement
During the emergency period, no person may leave the place where they are living without reasonable excuse.
A reasonable excuse includes the need—
to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2.
to take exercise either alone or with other members of their household;
to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;
to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(1), to a vulnerable person, or to provide emergency assistance;
to donate blood;
to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;
to attend a funeral of a member of the person’s household, a close family member, if none of these are attending, a friend;
to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;
to access critical public services, including— childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child); social services; services provided by the Department of Work and Pensions; or, services provided to victims (such as victims of crime);
in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;
in the case of a minister of religion or worship leader, to go to their place of worship;
to move house where reasonably necessary;
to avoid injury or illness or to escape a risk of harm.
The word ‘need’ prefaces the exceptions and this implies an added necessity test.
Requirement to close premises and businesses during the emergency
A person responsible for carrying on a business which is listed in Part 1 of Schedule 2 must—
During the emergency period—
close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
cease selling food or drink for consumption on its premises; or
if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the emergency period.
Please contact us for accurate up to date advice if you are unsure as to your legal obligations.
Restrictions on gatherings
During the emergency period, no person may participate in a gathering in a public place of more than two people except—
where all the persons in the gathering are members of the same household,
where the gathering is essential for work purposes,
to attend a funeral,
where reasonably necessary— to facilitate a house move; to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006; to provide emergency assistance, or
to participate in legal proceedings or fulfil a legal obligation.
Penalties
Breach of these emergency regulations can result in fixed penalties (of up to £960) and unlimited fines.
Adults must do all they can to ensure that children comply, and failure in that regard can itself result in prosecution.
Other enforcement measures can be taken concerning business premises and failing to comply with restrictions.
If you have received a fixed penalty that you wish to challenge or are being investigated or prosecuted for an alleged breach, our expert team are able to advise.
Category Archives: News
On Wednesday 25th March 2020 the Coronavirus Bill completed all its parliamentary stages, and Royal Assent was signified, bringing in to force an unprecedented piece of emergency legislation.
The purpose of the Coronavirus Act is to enable the Government to respond to an emergency situation and manage the effects of a covid-19 pandemic.
A severe pandemic could infect up to 80% of the population leading to a reduced workforce, increased pressure on health services and death management processes.
The Act contains temporary measures designed to either amend existing legislative provisions or introduce new statutory powers which are designed to mitigate these impacts.
The Act aims to support Government in the following:
Increasing the available health and social care workforce
Easing the burden on frontline staff
Containing and slowing the virus
Managing the deceased with respect and dignity
Supporting people
What are the changes?
The efficiency and timeliness of court and tribunal hearings will suffer during a covid-19 outbreak. Restrictions on travel will make it difficult for parties to attend court and without action a significant number of hearings and trials are likely to be adjourned.
In criminal proceedings, the courts have a duty to deal with cases effectively and expeditiously and that includes making use of technology such as live video links, telephone or email where this is lawful and appropriate.
Video link technology is increasingly being used across the court estate enabling greater participation in proceedings from remote locations. The courts currently have various statutory and inherent powers which enable them to make use of technology.
The Act amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.
Health Protection Regulations
The Act permits ministers to create new criminal offences by regulations issued under existing public health legislation. Such offences are to be triable summarily only and may not be punished with imprisonment.
Enforcement Powers
The Act provides for various enforcement orders to ensure public health and safety are maintained; violation of these orders, including obstruction etc. will be a criminal offence. Many of the emergency powers under the Act can result in criminal sanction if lawful directions are not obeyed.
Infected persons
Schedule 20 of the Act provides for screening and quarantining of infected persons (or persons suspected to be infected).
In enforcing schedule 20 powers (and similar provisions apply to other powers), a constable may:-
use reasonable force;
enter any place; and
give reasonable instructions to the person (though he must inform the person that informing him of the reason for the instruction that it is an offence to fail to comply).
Events, gatherings and premises
Schedule 21 covers events, gatherings and premises.
The provisions give the Secretary of State the power to prohibit or restrict events and gatherings, and to close premises, if the public health situation deems it necessary.
This streamlines existing legislation in England and Wales, to ensure that powers to prevent events or gatherings can be deployed as quickly as possible in the event this is justified by the evidence.
This can be deployed if, having had regard to the relevant advice, such a prohibition or restriction would:
prevent, protect against or control the incidence or transmission of coronavirus, or
facilitate the most appropriate deployment of medical or emergency personnel and resources
Conclusion
This legislation has passed through parliament at remarkable speed and with little scrutiny. We are on hand to advise anyone who faces investigation or prosecution as a result of alleged non-compliance.
At all times, we will remain vigilant to ensure that the State does not abuse emergency legislation.
Category Archives: News
While accepting that society cannot slip into lawlessness during difficult times, it must also be accepted that it is incumbent on the police and prosecution to take steps to ensure the safety of suspects and their representatives while in police custody.
It was, after all, a police officer’s decision to detain and individual in the first place rather than take verifiable details and arrange an interview at a later date. Again, we accept that there will be circumstances where an arrest and detention will be unavoidable.
Partner and duty solicitor Jon Hullis attended upon a client at the Bridewell police station. Although we had earlier published emails that flowed from our attendance at the police station we have been asked to remove them so have done so.
In summary, observations were made:
Jon’s experience was that literally no measures were being taken at the Bridewell to distance people. Officers had to be asked to keep a safe distance.
He was not offered any PPE, although to use it would have been pointless as nobody else was.
No adjustments were being made to normal procedures in deciding whether interviews are actually necessary. The client to be interviewed in this case was clearly shown on 18 separate sets of CCTV committing shop thefts. The interview was planned to take 90 minutes. The police had indicated the client would be charged in any event.
In the event Jon’s client, following consultation, chose not to be interviewed. This seemed unarguable bearing in mind the evidence and the current public health situation.
The officer responded by saying that the Crown Prosecution Service insisted on an interview in every case and that position had not changed. The CPS ‘would have a go at them’ if an interview did not take place.
Jon made the personal observation that he had carefully followed Public Health England guidance and therefore this was the first time he had left his house in three days. As a result at this attempt at a pointless interview, he has now risked exposing his family to the virus.
This scenario is being repeated numerous times every day across the two Nottinghamshire custody suites.
A request was made that urgent advice be given from the CPS as to the necessity of recorded interviews in many cases, so that as many people as possible can be protected from wholly unnecessary risks.
We intend to provide advice and representation to all suspects who seek it. There are many benefits to representation in police interview.
Now more than ever it might be that our early input into a case can secure your early release, either to return for interview on a future date or for no action to be taken.
However, we can only permit our staff to attend at police stations when it is safe to do so. The police and prosecution can take simple steps to try and ensure safety. We await confirmation of whether those steps are to be taken.
Our advocates will regularly use the Advocates’ Gateway Toolkit that provides assistance in identifying when a witness or defendant may be vulnerable, as well as helping in the formulation of questions for those who may have, for example, autism or a learning difficulty, or be vulnerable due to their youth.
