Practitioners and potential detainees may find this document helpful in terms of how Derbyshire police will be processing prisoners who have, or are suspected of having, the COVID-19 virus.
Not much. And we have no toilet paper stash either.
The best we can do is publish information relevant to your police investigation and court case as we find out about it. Follow us on one of our social media feeds for up to date information.
If you have a specific query about your case, or know that you can’t make an important date due to illness, please contact your nearest office straight away.
Partner and solicitor advocate Andrew Wesley was one of only 46 solicitors who chose to take part in seven focus groups around the country. At the Nottingham meeting, several firms were represented by experienced practitioners, but many firms did not send a representative and their voices were not heard.
33 barristers took part in 4 similar focus groups and expressed their opinions on a range of matters relevant to the consultation. Unfortunately, and perhaps unsurprisingly, they made a case for an increase in fees based on the inadequacy of preparation by solicitors in relation to a whole range of issues.
The general tone of their feedback was that ‘good solicitors’ (or litigators) were few and far between and the independent bar were having to shoulder the burden of what had traditionally been areas for solicitors.
Solicitors criticised by the Bar
The first criticism came within the context of cracked trials, where the work undertaken by more junior counsel was said to be ‘front-loaded’ in terms of the duration of a case, and ‘included litigation aspects’. A damning conclusion was offered that ‘poor quality [and] limited solicitor work was said to drive front loading’.
A second criticism relates to the time spent analysing unused material. This was traditionally a job carried out by the solicitor or litigator who would request the appropriate material and then consider it. Defence statements would be drafted by the solicitor in an attempt to secure disclosure of this additional material.
Unfortunately, last year one barrister reported ‘We’re doing solicitors’ jobs for them as well because they don’t send along their support services, and then we have to do all the returns as well. We have to email people in the middle of the night to tell them what’s been going on during the day. It’s very time consuming.’
This appears to be a widely held view as ‘barrister participants reported that previously solicitors did a thorough job examining the unused material and provided the barristers with details of the areas that they needed to look at. However increasingly, in their view due to financial pressures, solicitors were doing this less and less and leaving it to the barristers.’
Are there any good solicitors left?
The barristers surveyed were able to identify ‘good solicitors’ who still undertook this work, but they are, apparently, few and far between. In all four barrister focus groups the view was expressed that unused was not being considered by solicitors as it should be. Barristers said that ‘this was caused by solicitors being “so overburdened with work” and having so much pressure to make turnover”.
Expanding further, counsel offered this opinion – ‘[Solicitors] earn so little in the magistrates’ court that the litigators’ fees for these cases are just a sort of bounty for them. They don;t do any work on them. It’s those fees that allow them to keep their practices running, so they just punt it all off to the barristers who then have to do all the work on it.’
Unsurprisingly, solicitor participants stated that they did review unused material. It was often a key part of the case and a dereliction of their professional duties if they did not. This may be a result of only ‘good solicitors’ choosing to take part in the consultation exercise.
VHS Fletchers’ attitude to Crown Court cases has not changed. We have Crown Court preparation undertaken by dedicated Crown Court litigators, reflecting the fact that the preparation of Crown Court cases involves a particular skill set. Our litigators attend court, whether in support of independent counsel of in-house barristers of solicitor advocates.
Other local firms have adopted the same attitude, and choose to employ litigators or send solicitors in support and who properly prepare cases, whether for trial or plea.
Ministry of Justice presented with incorrect impression?
However, the reality remains that the barristers surveyed are either misrepresenting the lack of work that solicitors undertake on cases, or they are telling the truth about a significant number of firms. If it is the latter, the Ministry of Justice is getting a skewed version of the professions, but will no doubt make decisions in relation to litigator and advocates’ fees accordingly.
If the truth is that across the board solicitors and litigators are doing less then why would the Ministry of Justice pay us more? If the work we as solicitors are doing is actually reducing then why would we expect to be paid more?
It seems clear that the solicitors who take part in these focus groups are the ones that do the work expected of them and within the existing fee structure. They then take the time to attend these meetings in their own time to try and encourage proper payment for work properly done.
While one effect of consultation documents such as this may be to divide the profession, counsel may be better served complaining about the lack of work being undertaken by specific firms to the firm, Legal Aid Agency or SRA, rather than arguing for a financial benefit as a result of the inaction.
We are talking about Keres & Co aren’t we?
The behaviours explained of by counsel in these focus groups appear to very much match those highlighted by the Secret Barrister by the ‘fictional’ firm Keres & Co.
Everybody knows a Keres & Co (or two) but it appears that nothing can be done about them. The activities aren’t picked up on peer review or Legal Aid Agency Audit. The SRA aren’t interested without ‘evidence’ and of course evidence coming from disgruntled clients (who may well have convictions) may not be particularly persuasive.
We have now, however, reached a point where not only are these firms taking work from those solicitors that will do the work, but are now affecting our ability as a profession to negotiate proper fee increased that reward a job well done. They have given the Independent Bar ammunition to use in an attempt to secure a greater share of the ever shrinking legal aid pot.
Tell the public what good solicitors should be doing for them?
Those ‘good solicitors’ left need to publicise what we do and work with counsel to publicise what should be expected of a litigator. This will allow clients a better insight into what their solicitor should be doing for them, improve the lot of the barrister, and help secure a financial settlement that is fair to both halves of the profession.
Category Archives: News
As the UK prepares to move into the ‘delay phase’, changes are expected to criminal justice procedure. So, what might be expected to change?
Criminal Investigations
In the event of any public disorder, work on low priority criminal investigations may slow or stall entirely as police resources are diverted elsewhere.
Most police custody suites hold relatively few individuals and they are generally not held in close proximity, so this should not present any particular difficulties for policing.
If police officers are off sick, capacity may be affected, and this again may impact on police work volumes.
Precautions already in place, such as not shaking hands and being extra vigilant to observe basic hygiene rules are likely to be emphasised.
Criminal Proceedings
Some criminal processes can be changed by way of secondary legislation, so it is possible that custody time limits which regulate the maximum period a person can be held in custody, might be lengthened (The Prosecution of Offences (Custody Time Limits) Regulations 1987).
Other processes will need to be changed by way of emergency legislation.
The Civil Contingencies Act 2004 does not permit changes to ‘criminal proceedings’. The term ‘criminal proceedings’ is not defined in the Act and has been the subject of intense discussion in the past (concerning terrorist provisions), but would likely be interpreted as being the point from charge.
Therefore, it is likely that the government will have to introduce further emergency legislation to deal with changes to video-link arrangements and case management, particularly as the use of juries may become too high a risk.
We are however unlikely to see the equivalent of ‘Diplock Courts’ (trial by Judge alone).
Prisons
Prisoners are held in a large population at close quarters, and this makes the prison estate a high-risk area for the spread of infection. The absence of prison staff due to illness will increase pressures further and may leave some prisons too challenging to manage.
The Secretary of State already has powers that would allow for the early release of prisoners, and this may need to happen, no matter how politically unattractive this may seem.
We will have to wait and see what proposals emerge as the coronavirus spread continues. Be assured, however, that at the forefront of our thinking will be safeguarding of fundamental rights, and we will not hesitate to challenge any processes that threaten to weaken these.
How can we help?
Not much. And we have not toilet paper stash either.
The best we can do is publish information relevant to your police investigation and court case as we find out about it. Follow us on one of our social media feeds for up to date information.
If you have a specific query about your case, or know that you can’t make an important date due to illness, please contact your nearest office straight away.
Category Archives: News
A new series on Netflix, ‘The Stranger’, is receiving rave reviews. Viewers have been keen to discover the secret being kept from lawyer Adam Price as he searches for his missing wife.
There are many sub-plots along the way that involve the blackmail of several individuals keen to suppress unsavoury stories that could otherwise make their way into the public domain.
What is ‘blackmail’?
Section 21 of the Theft Act 1968 defines the offence in the following terms:
“A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief:
(a) that he has reasonable grounds for making the demand; and
(b) that the use of the menaces is a proper means of reinforcing the demand.
The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.”
In almost all instances the offence involves a threat to reveal information known about a person unless that person, or another on their behalf, pay to keep it a secret.
What is the penalty for blackmail?
The offence carries up to 14 years imprisonment. As a result it is one of the most serious crimes on the statute book.
In Hadjou 11 Cr App R (S) 29 the offence was described as one of the ugliest and most vicious criminal offences, akin to “…attempted murder of the soul”.
These are some examples of the general approach to sentencing:
Mincher [2016] EWCA Crim 1528
A sentence of two years imprisonment had been passed, suspended for two years. This was judged to be unduly lenient and replaced with five years imprisonment.
In this case the defendant had threatened the victim that if he did not give her the money she wanted, she would tell the police that he raped her. The defendant took in total £40,000 from the victim and was described as a socially awkward and vulnerable man.
The court held:
“Blackmail [is] one of the most serious and vicious offences in the criminal calendar. The authorities suggest that threats to disclose discreditable conduct, whether that conduct occurred or not, are to be taken even more seriously because the injury done to the victim “tends to be enduring fear, ever present anxiety and fear of discovery which gnaws away at the victim for long periods”.”
MJC [2015] EWCA Crim 1519
Here, a sentence of two years imprisonment was reduced to eight months on appeal. The defendant was a 33-year-old married man of good character. His wife’s 14-year-old sister became involved in an exchange of sexually explicit images with a 16-year-old boy, the victim. The defendant, aware of the pictures, threatened to report the complainant to the police unless he was paid £75.
The court held:
“In the present case, it is evident that there was no sophistication or premeditation in the blackmail. However, for a mature man to make the kind of threats he did to a misguided young man, as the appellant did in this case, albeit over a limited period of time, was plainly deeply unpleasant.”
These cases show that while there may be a wide variation in sentencing, the result will be very much fact specific. No case has the status of a sentencing guideline, but in almost all cases a sentence of imprisonment will result.
Contact a criminal law specialist
Blackmail will always be treated as a serious matter.
If you are arrested or know that the police wish to speak to you about an allegation involving blackmail, make sure you insist on your right to free and independent legal advice.
We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.
VHS Fletchers offices across the East Midlands
Alternatively you can contact us using the form below.
Contact
Category Archives: News
Many professionals are held by their regulators to a higher standard than other members of the public. Conduct which may fall well short of being criminal in nature may nonetheless excite the interest of a regulator, with the potential for censure.
In the most recent case of Diggins v Bar Standards Board [2020] EWHC 467 (Admin), a barrister failed in his challenge to a sanction being imposed in respect to an unpleasant social media post.
No ‘second bite of the cherry’
The court emphasised that an appeal was not a de novo exercise, allowing for another chance to litigate the same points in the hope of a different finding.
The court held:
“There is another strand to the self-restraint required of an appeal court that is relevant here. This is an appeal against a professional disciplinary Panel. Where the Court considers on appeal a decision of a profession’s regulatory or disciplinary body it:
“…will place weight on the expertise brought to bear in evaluating how best the needs of the profession and the public should be protected” (Council for the Regulation of Healthcare Professionals v General Medical Council [2005] EWCA Civ 1356 [2005] 1 WLR 717 [78]).
In the context of sanctions imposed by regulators of the legal profession, the Court will keep in mind that the tribunal “.. comprises an expert and informed tribunal, which is particularly well placed in any case to assess what measures are J required to deal with defaulting solicitors and to protect the public interest.
Absent any error of law, the High Court must pay considerable respect to the sentencing decisions of the tribunal.
Nevertheless if the High Court, despite paying such respect, is satisfied that the sentencing decision was clearly inappropriate, then the court will interfere.””
This part of the judgment is a salutary reminder that it is all essential to get things right at the first hearing. Any professional who faces regulatory proceedings should take particular care to ensure that the solicitors and barristers instructed are sufficiently expert in this field of law.
Right to a private life?
The central ground of challenge was that the regulator had no jurisdiction to deal with disputes of this nature, with Diggins arguing that:
“…participation in a “twitter spat” was an aspect of his private life which, on the proper interpretation of the BSB’s own rules and guidance and/or as a matter of human rights law, falls wholly outside the proper scope of professional regulation.”
The court emphasised that the regulators own guidance makes very clear that transgressions in a professional’s private life may be considered. The court went on to reject a large number of ECHR human rights challenges.
Rather tellingly the court held:
“…[caselaw does not] provide any support for the further argument advanced to me by the appellant, that the Panel could not properly find against him because “Twitter is famously rude and offensive and complaining of that is like going to a Motorhead concert and complaining it is too loud”.
It is a notorious fact that many on Twitter use rude and offensive language, indeed that some engage in harassment of others, or wounding “pile-ons”.
But I have no evidence, nor is it a matter of common knowledge, that everybody on Twitter behaves in these ways.
Even if that was so, a descriptive norm of that kind could not confer a right on any individual user to post rude or offensive messages. If the argument is that every Twitter user makes a voluntary submission to behaviour of that kind, no such argument was advanced below, and I consider it to be untenable.
I see no evidential or other basis for concluding that all Twitter users consent to being treated abusively or offensively.”
Conclusion
In all probability, we have not seen the last of these challenges to the jurisdiction of a regulator to police behaviour of this type. It is, however, becoming quite clear that the courts appear to take little issue with the regulatory approach, and all professionals would be wise to reflect on how they interact on social media and other platforms.
The starting point is that no prosecution can go ahead unless there is a realistic prospect of conviction. How the prosecution case is formulated remains a matter for the Crown Prosecution to decide.
These are common issues:
Where a statement has been provided
If a witness will not cooperate, the prosecution has the option to apply for a witness summons to force that witness to court. Almost all witnesses are ‘competent’. This means that they can be called to court to give evidence. If they refuse to attend voluntarily then they can be brought to court under arrest.
Once in the witness box a witness may then decide to answer questions and the case will proceed as usual. If a witness refuses to answer questions they may be punished for contempt of court. This threat is often enough to persuade them to comply.
In some instances a witness cannot be forced to answer questions. Witnesses in such cases are referred to in law as ‘not compellable’. We can advise further on the rules that apply to any specific case.
Where a witness is absent
The prosecution may be able to rely on the witness’s evidence by making an application under the hearsay rules. This procedure is often used if the witness is too frightened to give evidence or cannot be found.
The rules here are particularly complex. You will wish to take legal advice and all of our solicitors are well versed in their proper application.
No statement is ever made
The prosecution may be able to proceed without any evidence from the witness. The CPS can rely on on other witnesses or sources of evidence.
In cases where the police attend an alleged domestic violence incident, the officers may well have taken footage on body worn video cameras. These record what is said and done when they arrive.
In law, this is termed real evidence and may also amount to what is referred to as ‘res gestae’ evidence. This means that it may well be admissible.
The evidence of a person who makes an accusation in the immediate aftermath of the incident may find that this account is admissible at trial even without their attendance.
Similarly, any admissions recorded at the scene, whether via video or other means,may also be admissible under normal principles. The same may well apply to ‘999’ calls to emergency services.
The wider public interest?
There is a wider public interest in pursuing some prosecutions, even where the immediate victim of the crime does not wish the matter to progress to court or trial.
Contact a criminal law specialist
If you are arrested or know that the police wish to speak to you about an allegation where there may be a reluctant witness, make sure you insist on your right to free and independent legal advice.
The legal rules outlined above give only a brief flavour of the legal framework, the legislation and case law is voluminous and seldom as clear cut as some might think. Legal representation is likely to be key to the outcome of your case.
We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.
VHS Fletchers offices across the East Midlands
Alternatively you can contact us using the form below.
Contact
Category Archives: News
Matt Hancock, Secretary of State for Health and Social Care, has written to NHS staff voicing his concern in relation to the use of violence against emergency workers. Hancock’s approach mirrors that taken last year by police chiefs who were worried about the rise in violence used towards their police officers.
Last year’s NHS Staff Survey revealed that 15% of NHS staff and 34% of ambulance trust staff had experienced physical violence. As a consequence, the NHS, police and Crown Prosecution Service have approved a joint agreement on offences against emergency workers.
The purpose of the joint agreement is to provide a framework to set out what victims of this crime can expect and to ensure effective investigation and prosecution. The joint agreement is in relation to assault on all emergency workers and there seems to be a renewed focus on this area.
What differs from the policy towards other victims of violence?
At investigation level the agreement sets out that the Victims’ Code applies. As a result victims will be offered the opportunity to complete an impact statement This is the same for all victims, but there are substantial differences in other respects:
organisational impact statement – the organisation (hospital, GP surgery, ambulance service) cam set out the impact that the crime has had on their service
community impact statements may be submitted
guidance on the management of potential exposure to blood-borne viruses should be considered. It advises on the risk of infection through injury of Hepatitis B, C and HIV
The decision to prosecute
The charging decision is made in the same way for all offences using a two-stage test. The first question is whether there is sufficient evidence for a realistic prospect of conviction. If the answer is yes, the second question is whether a prosecution is required in the public interest.
It is acknowledged that assaults on NHS staff are sometimes committed by those in crisis or with neurological conditions. The CPS must take account of the level of culpability of the suspect including whether he or she was affected by any significant mental or physical health or disability.
If they were so affected, it may mean that a prosecution is not required. On the other hand, prosecutors are told that a prosecution is more likely if the offence is committed against a person who is serving the public at the time.
Challenging a decision not to investigate or prosecute is the same for NHS staff as for other victims. An issue can be raised with the police if they decide not to proceed with an investigation or the victim’s right to review can be invoked following a CPS decision.
An important aspect of seeking our expert legal advice if you are being investigated or prosecuted for such offence is that when appropriate we will identify cases where it is appropriate to challenge a wrongful charging decision.
This will be particularly relevant in cases where a client was suffering from mental or physical disability that could have affected their judgement.
A Seven-point plan
The agreement contains a pledge to emergency workers via a seven-point plan, which can be summarised as:
assaults and hate crimes will be investigated in the same way as for members of the public;
the Victims’ Code applies to all victims including staff and volunteers;
the affected member of staff should not investigate their own assault;
the right welfare and supervision should be offered to victims;
the supervisor must ensure that the head of department is informed to provide continuity of welfare support;
the victim is to complete a Health and Safety incident report with their supervisor;
to ensure a successful prosecution, the best evidence must be presented.
As can be seen, this plan tackles a perception that assaults against emergency workers could be seen as being something to be expected or tolerated as being a part of the job.
All our lawyers are trained to ensure prosecution guidance is properly applied. We are also trained to ensure that Magistrates and Judges properly apply the sentencing guidelines for any given offence.
It is always a risk where particular types of case are given substantial publicity that courts react in an overly harsh way towards defendants. We will ensure that the best result possible is secured on your behalf.
How can we help?
Assault on an emergency worker is more serious than common assault, carrying a sentence of up to 12 months, and as a result we are seeing more cases come before the Crown Court for sentence.
More serious assault will continue to be charges as allegations of assault occasioning actual bodily harm or wounding.
If you are arrested or know that the police wish to speak to you about an allegation involving an emergency worker, make sure you insist on your right to free and independent legal advice.
We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.
VHS Fletchers offices across the East Midlands
Alternatively you can contact us using the form below.
Contact
Category Archives: News
A meeting is to be held on 3rd February 2020 to obtain views from ‘stakeholders’ about a plan to move the remand court at Chesterfield Magistrates’ Court to Derby Magistrates’ Court instead.
It is suggested that a low volume of prisoners mean that it will be a better use of Court resources to transfer prisoners away from their ‘home’ court and to a court room nearly an hour away, door to door by car, or 30 miles.
We have some concerns, however, that all might not be what it seems. For example, custody cases are often dealt with as part of a general plea list rather than in a specific custody court. Additionally the court has itself reduced custody cases by allowing those subject to warrants surrendering themselves to the court rather than to the police station and then the cells.
A steady trend
The process of court closures started years ago with a procession of court closures across the country. In this area we have lost Ashbourne, Matlock, Glossop, Swadlincote and Buxton for example.
Chesterfield Magistrates’ to Derby Magistrates’ door-to-door
It is hard to believe that this isn’t the first step in a ‘rationalisation’ that will see all Chesterfield Magistrates’ Court work moved to Derby. For example, if there are no longer staff in the cells to deal with remand prisoners, how can a defendant be sentenced to custody at Chesterfield, or how can a custody trial be dealt with?
Case by case more work will be removed from the court until it is declared ‘inefficient’ by HMCTS and then closed, even though it is HMCTS that has rendered a court ‘redundant’. This pattern is seen over and over again.
Entirely unsurprising?
This ‘need’ for efficiency is a direct result of the court in Chesterfield lacking staff. Since October 2019 Chesterfield Magistrates’ Court has lost 2 legal advisers on top of the 2 lost in the preceding 18 months.
Flexible working means a further 3 days have been lost as a legal adviser has been permitted to reduce from full-time to 2 days a week.
A further legal adviser has been seconded to Stafford for a ‘project’.
Salary and conditions, including the removal of most admin staff, resulting from austerity measures make the court service far less attractive than 15 or 20 years ago so there is inevitably a difficulty in recruiting.
Separately, legal advisers are no longer contractually obliged to cover Saturday or other occasional courts. As a result it was difficult for the courts to keep sitting over the Christmas period.
While we understand that trainees are being recruited this can only be a partial solution in the medium term. It seems unlikely that the Ministry of Justice will ever fund adequate staff or pay levels.
Area served by Chesterfield Magistrates’ Court
In the meantime, this failure on behalf of the court service will be subsidised by the defendant and their families, solicitors and other court users.
Where is the defendant in all this?
While prisoners will have the dubious advantage of free transportation to Derby from the police station, they will be less fortunate on the return journey should they be released on bail or because they are sentenced to a community penalty.
And of course this plan will not just affect Chesterfield residents. Chesterfield Magistrates’ Court also serves those communities even further afield such as High Peak. They already face the prospect of being brought before a Magistrates’ Court in Manchester, and may now be expected to find their way back from Derby. While only a little over an hour in a car, on public transport the journey is at least two hours.
A bail application is perhaps one of the most important hearings that a defendant will have. Understandably their family may wish to attend in support. Family may be in a position to provide an address, or surety, or useful information about the health of mental well-being of a defendant. They will have to be able to afford and make the journey to court and back if they wish to offer that support and input.
Vulnerable defendants may suddenly find themselves alone.
Additionally we assume that the court thinks that it doesn’t matter that there will be an increased likelihood that defendants will be kept in police cells over night, as the cut off time for getting a client into a remand court will inevitably be earlier than before.
And what of the solicitors?
Everybody knows that margins under legal aid are slim, and that many firms operate with marginal profitability. Fixed fees are paid sometimes with, and sometimes without, travel time as an extra payment. In any event, the hourly rate for travel does not permit any profit element.
The change will mean that for solicitors based in Chesterfield, instead of travelling to their local court they will now have to travel to Derby with a risk of no payment, or no profitable payment, being made. More time will be spent at a loss, and employers will have to compensate staff for the travel expense in any event.
For example, one of our solicitors will face an hour’s journey, more than double the travel time they currently undertake.
An additional cost will also have to be absorbed. To be at court at a reasonable time solicitors will have to set off earlier. Who pays for that in terms of salary? Does it need a change in contractual hours? Will the job remain as ‘attractive’ with additional travel in rush hour built in?
What of those solicitors with child care responsibilities who can currently juggle them successfully as they are always at their ‘home court’? Extra travel at the beginning and the end of the working day will frustrate existing arrangements.
Firms and individuals will bear more costs for the same level of fees. If firms are no longer viable, what will be the effect on access to justice for those local to Chesterfield?
No doubt a new and confusing duty scheme will be imposed on the profession as well…
VHS Fletchers office, Chesterfield
And everybody else…
Nobody might notice the extra car on the road between Chesterfield and Derby every day but they will be there.
If expenses and travel are paid there will be the extra cost to the tax payer through the Legal Aid Agency.
Will the court be able to send people to prison? Will there be custody staff in the cells waiting for new arrivals? Will those sentenced to custody be placed on trust to wait to be taken away, or chained to radiators? (Both of the latter have been tried in the past at other local courts).
Ultimately a court closure will cost not only solicitors and their clients, but also the police and witnesses in terms of time and lost opportunities to use their time better.
Any closure will also provide witnesses with an opportunity to travel on the same bus or train to court that a defendant is having to catch.
Austerity over?
Despite announcements to the contrary it appears that there is little interest from government in properly funding the justice system.
Proposals like this that prioritise convenience to the court over the inconvenience and cost to every other ‘stakeholder’ simply show that the powers that be are not listening or interested in the knock on effects.
A formal consultation will no doubt follow the meeting, and that consultation will inevitably produce a number of responses from all of those involved that suggest, with evidence, that this is a bad idea. There is always a belief that these changes will then inevitably take place despite these contributions. This will be particularly true in this case where the court service have simply been unable to recruit adequate staff.
The Crown Prosecution Service did not authorise any charge, either for rape or voyeurism. Emily maintained that any sexual activity was not consensual but did not challenge the Prosecution decision not to charge the man with rape.
She did, however, suggest that the decision in relation to the voyeurism charge was wrong.
Definition of voyeurism
A person commits the offence of voyeurism if:
for the purpose of obtaining sexual gratification, he observes another person doing a private act, and
he knows that person does not consent to being observed for his sexual gratification.
In Emily’s case, the man accepted he had filmed her “in case he wanted to masturbate at some point”. It was also conceded that there was evidence he had filmed her without her consent.
Under the victim’s right of review procedure, Emily challenged the decision not to prosecute the man for voyeurism. The Prosecution upheld their original decision saying that a consensual sex act would involve a person observing your naked body and that the observation could extend to filming.
Judicial review of the decision
Emily applied for a judicial review of the decision, submitting that errors of law were made by the prosecution in making this decision.
In particular, it was argued that the Crown Prosecution Service wrongly treated the question of whether Emily consented to the sex as being decisive of the question of whether she was doing a private act when she was subsequently filmed naked and asleep.
The focus was wrongly on whether she had a reasonable expectation of privacy rather than whether she was doing a private act. It was also argued that it was wrong to say that non-consensual filming of a sleeping person when naked is not really different, in terms of privacy, to being observed asleep when naked.
The real issue was the correct approach to the phrase “doing a private act”.
Outcome of the review
The Court of Appeal has now ruled that anyone who films a partner, during sex, without their permission is committing the offence of voyeurism. This decision was made in the case of a man who filmed himself having sex with prostitutes. Tony Richards had argued that he was allowed to film as a bedroom could not be a private place if he was lawfully present.
Richards appealed against his conviction on two charges of voyeurism. Unusually, Emily Hunt was given permission to intervene in the hearing. She was allowed to put forward the submission that consent should be the primary issue in these cases.
Richards argued that the issue could not be consent when the place where the offence occurred was shared with another person. The test, according to him, was whether the person had a reasonable expectation of privacy. Richards accepted that filming without consent was a “betrayal of trust” but not that it was an illegal act.
On dismissing the appeal, it was said “a defendant can be guilty of an offence of voyeurism even when he is a participant (in relation to having sex) … section 67 of the Act which protects individuals against the recording of any person involved in a private act is not limited to protecting the complainant from someone not present during the act.”
The Crown Prosecution Service subsequently confirmed that they would be reviewing their position in respect of Emily’s judicial review. A spokesperson said “what constitutes a ‘private act’ for the purposes of the offence of voyeurism had never been conclusively defined by a higher court” until the case of Richards.
It was later said, by the Centre for Women’s Justice who supported Emily’s campaign, that the Crown Prosecution Service was no longer resisting the judicial review and would look again at the decision not to prosecute.
Complainant Emily Hunt
What to do if you are accused of voyeurism
Voyeurism is a serious offence that can be dealt with at the Magistrates’ Court or the Crown Court. It carries a maximum sentence of 2 years’ imprisonment.
A conviction can also lead to notification requirements under the Sexual Offences Act 2003 and restrictions on working with children or vulnerable adults.
The consequences of a conviction can, therefore, be far reaching.
If you are arrested or know that the police wish to speak to you about an allegation such as voyeurism, make sure you insist on your right to free and independent legal advice.
We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.
VHS Fletchers offices across the East Midlands
Alternatively you can contact us using the form below.
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Category Archives: News
As businesses prepare for Christmas, it is customary to inform clients of seasonal opening hours. For many, it will simply be a case of announcing the days on which the business will be closed, but for us, as criminal defence solicitors, the position is a little more complicated than that owing to the need for emergency legal advice.
We close our offices, but of course we don’t close down our emergency services.
Our offices across the East Midlands will be closed on the following dates:
24 December 2019
25 December 2019
26 December 2019
27 December 2018
31 December 2019
1 January 2020
Emergency legal advice
However, if you need emergency legal advice in relation to a criminal law related issued, at any time of the day or night, we have a team of people to assist.
For example, the Nottingham number is 0115 9599550. You will be able to speak to one of our on call solicitors.
The work of a criminal lawyer does not lend itself to regular working hours, nor is there any time, day or night when we are not available. We offer a level of accessibility that few other professionals can match, and we are immensely proud of that fact.
When arrested on Christmas Day, as some people inevitably will be, we will be there by their side to offer timely legal advice to protect their interests.
Even the criminal courts are open for business during at least part of the festive period, allowing for bail applications and other urgent court business. Again we will provide representation at those hearings.
And of course, those in prison can experience particular difficulties as they are reminded of families far away, also impacted by the trauma of custody.
We take this opportunity to wish all of you a peaceful and restful holiday season, but if for any reason you need us, we will be there at the end of the phone and in person.
