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:

1. assaults and hate crimes will be investigated in the same way as for members of the public;
2. the Victims’ Code applies to all victims including staff and volunteers;
3. the affected member of staff should not investigate their own assault;
4. the right welfare and supervision should be offered to victims;
5. the supervisor must ensure that the head of department is informed to provide continuity of welfare support;
6. the victim is to complete a Health and Safety incident report with their supervisor;
7. 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.

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

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

Alternatively you can contact us using the form below.

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.

We retain offices in both Ilkeston and Newark, even though there is no longer a court or custody suite for processing prisoners in either town.

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.

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…

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.

Maybe this time it will be different?

Category Archives: News

Covert Filming of Sexual Activity or Voyeurism

In 2015 Emily Hunt complained to the police that she had been raped in a hotel room. She had also been filmed, naked and asleep, without her consent. Although she is entitled to anonymity, she waived that right to draw attention to her case.

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.

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.

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

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

You can read more about how we prepare such a case for trial here.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

Alternatively you can contact us using the form below.

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.

You can contact us for emergency legal advice by calling any of our usual office numbers.

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.

You can read more about the benefits of instructing us to give emergency legal advice in police interview here.

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.

Category Archives: News

When people think about those being caught drink or drug driving, the cliche involves a man leaving a pub late at night, being seen to be driving erratically and then being stopped by the police.  Although this scenario may often be the the backdrop to an arrest for drink or drug driving, often the story is quite different.

The morning after the night before begins with a headache, followed by groans as the body and mind adjusts to the horrible thought that this is not a weekend and work beckons.

A quick shower revives the senses and off to work you go. Traffic is heavy as usual, drivers as intolerant as ever, and the rain contributes only to a sour mood amongst drivers. Then bang – a relatively minor shunt causing minimal damage to really kick off the day well.

It is, however. often this kind of minor road traffic incident that will cause traffic chaos at a peak time and attract the attention of the police with the result that there is roadside testing for drink and drugs.

The fact that you look great, feel fine and are not responsible for the accident will do nothing to mitigate the alcohol or drug levels in your body.  Anyone who tells you that you can confidently predict alcohol or drug levels the morning after is not telling the truth.

What happens next may make the earlier headache pale into insignificance.

An arrest, charge and court appearance resulting in a minimum period of disqualification.

Will you keep your job? What will your partner say?

The safest message remains ‘none for the road’.

In some cases, there are legal defences available, and we can discuss these with you.

Sometimes there are arguments to avoid a disqualification.

When a legal defence is not possible, we work hard to mitigate the sentence and get your life back on track.

The Christmas drink drive campaign 2019

Your local police force will now have in place its Christmas and New Year drink and drug driving campaign, roadside testing will increase, and officers will be extra vigilant.  You can read about the Nottinghamshire campaign here.

We hope that you do not need our services over the festive period, but if you so please be assured that we are here, on your side 24 hours a day.

Contact a drink drive specialist lawyer

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.

Well-presented mitigation can make a real difference to the outcome. Even where a disqualification cannot be avoided, we can often achieve a reduction in length.

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.

Category Archives: News

None for The Road – the Christmas drink drive campaign

With Halloween and Bonfire Night behind us it now won’t be long before Christmas is in our sights and the Christmas party season gets underway. It means that it is now time for the Christmas drink drive campaigns from your local police forces.

We will now all be familiar with the national police initiative that coincides with this time of year. Once again the police will be targeting drink driving.   Forces across the country prepare for a spike in the numbers of those tested and arrested for drink driving and drug driving offences.  This in part is due to an increase in police patrols dedicated to seeking out drink drivers and part as a result of the time of the year.

The more visible presence is in order to deter those who may think about drinking and driving.

The impact of a drink drive conviction

People may not view these offences as particularly serious when judged against other types of offences.  What is not often understood is the very real impact that the consequences of a drink drive conviction can have.

Research shows that the loss of a driving licence leads, in a great many cases, to loss of employment. This in turn can lead to a loss of housing as bills cannot be paid.  Sometimes a disqualification from driving could be the final straw that breaks a relationship. The financial costs flowing from a driving ban will be felt for many years thereafter.   Insurance premiums will be greatly increased.

Driving the morning after

As experienced road traffic solicitors we also see a great many people who come before the courts with alcohol readings that are not particularly high.  This might be where offences have been detected the ‘morning after’.  In such cases, offences can be said to have been committed perhaps more out of ignorance than due to a wilful disregard for the safety of others.

A single error of judgment can have devastating consequences.

What is a safe level of drinking if I propose to drive?

No alcohol at all is the safest approach to adopt.  It ensures that when a driver gets behind the wheel, their reactions will not be impaired to any degree at all.

Crucially it also prevents the driver getting the guesswork wrong as to how much can be drunk before a person is over the limit.  It is this mistake that brings so many people before the courts.

There are urban myths in circulation such as ‘2 pints are ok’.  These have long since been proved to be false, as have back of the envelope calculations as to how long it takes alcohol to leave the body.  Sleeping of a heavy drinking session will not speed up the rate at which alcohol leaves your body.  A big meal may slow down the rate at which you absorb alcohol, but you will end up with the same amount of alcohol in your system.

Different people will deal with alcohol in different ways.  This can even vary for one person depending on a multitude of factors.  Merely feeling okay to drive is not a reliable indicator as to whether a driver is below the legal limit or not.

As we get merry, we reach a tipping point.  We can make foolish choices that will prove costly, sometimes not just measured in financial terms but in injury and even loss of life.

Think, before you drink, before you drive.

You do not hear a lawyer say this often – but we do not wish to see you this Christmas as a result of the Christmas drink drive campaign.

How we can assist with your drink drive case

If you do make a mistake and find yourself in trouble, there is a lot we can do to assist you.

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.

Well-presented mitigation can make a real difference to the outcome. Even where a disqualification cannot be avoided, we can often achieve a reduction in length.

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.

Category Archives: News

The deadline for registering to vote for the General election 2019 has now passed.  Those who choose to vote will go to the polls on 12th December 2019 to decide the political makeup of the next parliament.

The Representation of the People Act 1983 creates a number of offences concerned with political elections and those engaged in political party management should receive detailed training in this regard.

But what happens if people fall foul of the law?

The guideline case in this area is Hussain [2005] EWCA Crim 1866, where the following observations were made.

Why election offences are so serious?

‘Among the most important features of the way of life in this country is, first, the fact that this country is a democracy. It has a form of government based upon the principle that, subject to limited exceptions, each individual member of the public is entitled to a single vote to elect the government of the day, whether national or local. In this process of election every vote should be of equal value. The second feature is that, although we have no reason for complacency, the government in this country (both national and local) is usually free from any form of corruption. The third feature to which we draw attention is that the principles to which we have already referred are every bit as much as important in the case of local government as they are in the case of central government.’

The danger to democracy

‘If in a democratic society the electoral system is contaminated by corruption or fraud, it will be rendered worthless. It is the responsibility of the courts and our justice system as a whole, so far as it is within the courts’ jurisdiction, to protect the country’s electoral system.

This is a responsibility to which the courts must attach the greatest of importance.’

The need for deterrent sentences

‘Having regard to the nature of those offences, it was of importance that the punishment that was passed was one which would deter others from committing offences of that sort.

Even a deterrent sentence has to be proportionate to the offence and not unjust in relation to the offender. However, a deterrent sentence is passed by the courts with the primary object of deterrence.’

Age and good character of limited mitigation, possibly aggravating the offence in some cases

‘… the circumstances of the offender, such as the fact that in this case the applicant is now aged 62 and suffers from angina, become of significantly less importance. So does the fact that hitherto he had been a leader of the community to which he belonged and that he was regarded by those in the community who knew him as being entirely estimable. Indeed the very fact that he had this reputation within the community meant that it was easier for him to commit these offences.

No doubt if his name had not been associated with the election in the way that it was, it would have been more difficult for those who were acting on his behalf to persuade people to entrust their voting papers to their custody. The applicant took advantage of members of his own community who were less educated and less able to protect themselves than the majority of the electorate in this country. They did not understand what they were doing when they handed over the papers. He used others to carry out his fraudulent intentions.

By doing so they became part of a conspiracy to undermine the electoral system. These were calculated offences.’

Actual Sentences Imposed

In the case of Hussain a sentence of 3 years 7 months was imposed for large-scale election fraud.

In Fadaka (2015) which concerned a false statement concerning candidate eligibility a suspended sentence of 12 months was quashed and 6 months immediate term imposed instead.

And finally, in Khan (2009), another fraud case in relation to ‘ghost voters’, the court commented that the appellants were wise not to appeal sentences of 42 and 54 months.

The clear message from the Court of Appeal is that election fraud offences will be treated extremely seriously and immediate custody is almost inevitable.

Contact a specialist criminal law solicitor

If you are arrested or know that the police wish to speak to you about an offence arising out of the General Election 2019 or any political election then make sure you insist on your right to free and independent legal advice.

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

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

Alternatively you can contact us using the form below.

Category Archives: News

In some instances, it is not convenient for a witness to be present in court to give evidence, generally because they live or work some distance away from the court, or some other good reason.

There are legal provisions that cater for this scenario, and while the prosecution widely uses them (notably for police officers), it is vital to remember that the defence can take advantage of the legislation in the same way.

What does the law say about the live link?

Section 51 of the Criminal Justice Act 2003 states that a witness (other than the defendant) may, if the court so directs, give evidence through a live link in the following criminal proceedings:

• a summary trial,
• an appeal to the Crown Court arising out of such a trial,
• a trial on indictment,
• an appeal to the criminal division of the Court of Appeal,
• the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (c. 35),
• a hearing before a magistrates’ court or the Crown Court which is held after the defendant has entered a plea of guilty, and
• a hearing before the Court of Appeal under section 80 of [the Criminal Justice Act 2003].

Can a defendant give evidence via this provision?

Section 51 does not apply to defendants and is considered somewhat out of date in other respects.  In Clark [2015] EWCA Crim 2192 the court observed:

‘That there are idiosyncrasies in the provision of this important aid to the administration of justice does not, in our judgement, befit a modern system of criminal justice. It does not further the overriding objective to deal with cases justly, including being fair to the parties, recognising the rights of defendants, respecting the interests of victims (and, in this case, witnesses) and progressing cases in a manner that is efficient, expeditious and proportionate.

There are clearly circumstances where it may be in the interests of justice for a court to be able to receive evidence by live link from witnesses and defendants for which the existing statutory provisions do not provide. One potential example is a defendant who wishes to give evidence in relation to a minor road traffic offence alleged to have been committed hundreds of miles from his home. There may even be examples where it may be in the interests of justice for a court to be able to receive material by telephone.

When Parliament first began legislating to prescribe the circumstances in which criminal courts could receive evidence by live link, the requisite technology was in its infancy and the courts were not necessarily equipped with the relevant equipment (or technical knowledge). Times have changed; technology has improved and is continually improving. The courts now regularly receive evidence by live link where the statute permits.

In the circumstances, therefore, it may be that Parliament should consider repealing the provisions of primary legislation relating to live links and provide a general authority to the Criminal Procedure Rules Committee to make rules to determine how and in what circumstances the criminal courts may receive evidence. Rules made by the Committee have the benefit of being formulated by representatives of those that have to use them and may be affected by them. They can also be amended with relative speed (for example, where gaps or unintended lacunas come to light) and in order to make best use of emerging technology. That, however, is a matter for Parliament, but, in our judgement, it is a step which requires very serious consideration.’

What factors will the court consider?

A direction may not be given under this section unless the court is satisfied that it is in the interests of the efficient or effective administration of justice for the person concerned to give evidence in the proceedings through a live link.

In deciding whether to give a direction, the court must consider all the circumstances of the case, and those circumstances include in particular:

Those circumstances include in particular:

• the availability of the witness,
• the need for the witness to attend in person,
• the importance of the witness’s evidence to the proceedings,
• the views of the witness,
• the suitability of the facilities at the place where the witness would give evidence through a live link,
• whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.

Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court. Advocates in the magistrates’ court should also keep this in mind when making closing submissions.

In some cases, applications for evidence to be given via live link are not appropriate, and we will strenuously object. Where it is in our client’s interest to make such an application, we will ensure that a reasoned and strongly supported application is advanced.

Contact a criminal law solicitor

If you face court proceedings you will wish to instruct one of our solicitors to advise on witness requirements and how witnesses should give evidence.  We can make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

Alternatively you can contact us using the form below.

Category Archives: News

It is a common occurrence to come across suspects and defendants who feel extreme anger and frustration at being caught up in the criminal justice process.

That anger sometimes spills over into the public domain, and the free availability of social media platforms such as Facebook and Twitter can allow for an all too easy way to express frustration.

When those frustrations contain or imply an attack upon the complainant in their criminal case, there can be repercussions in the event of a conviction. It is therefore ordinarily wise for accused persons, and those close to them, to maintain a dignified silence, no matter how hard that might be.

Example 1: Stuart Hall

Former TV Presenter Stuart Hall incurred the wrath of the Court of Appeal in respect to remarks he made in a public statement. He referred to the allegations against him as ‘pernicious, callous, cruel and above all spurious.’

The court observed:

‘Whatever legal advice the offender had by then been given, he knew the truth. He knew that he was guilty of molesting the complainants. As we have said, this deliberate falsehood is a seriously aggravating feature. 68. The offender was an expert in the ways of the media. He was fully alert to the possible advantages of manipulating the media. At that date he was hoping to escape justice and he was, as we see it, attempting to use the media for the purpose of possibly influencing potential jurors. Whatever it may or may not have done to influence any potential juror, we have a clear idea of what it did to some of the victims. One victim describes how the offender’s outburst “absolutely incensed” her. She felt furious about his blatant lies. There is a similar impression from another victim.’

Example 2: Max Clifford

In the case of Max Clifford who made numerous public statements proclaiming his innocence, the court said:

‘In passing sentence the judge referred to certain behaviour of the appellant. Some of it had been commented on in the victims’ impact statements. They had been upset by it. The judge said that the “additional element of trauma” caused by the applicant’s “contemptuous attitude” was something that he would take into account in passing sentence.

The first statement was a forceful claim of innocence reflected later in the defence advanced, but not directly referring to the victims. The second statement was a reiteration of innocence followed by a vehement complaint about the fact that the victims were entitled to anonymity. The reiteration of innocence again did not directly impugn the victims. The complaints about anonymity relate to a feature of the criminal process. They concern a topic which arouses public debate from time to time and which has been the subject of different views in Parliament on different occasions.

Whilst we readily understand that victims who were eventually vindicated would find such comments upsetting, we think that great care needs to be taken by sentencing courts not to elevate denials, albeit vehement, into something deserving of further punishment in the absence of some more explicit traducing of the victim. The court, of course, is perfectly entitled to reflect these matters in withholding available mitigation since the offender has shown no sign of remorse. Similarly, an offender who has contested the trial will lose what might be substantial credit for a guilty plea. We think that these remarks, properly considered, would of course justify a withholding of mitigation, but they should not have been used by way of positive aggravation.’

Potentially aggravating comments

Taking these two cases together, it would appear that there is a fine line between statements that might reduce mitigation and those that may well aggravate the offence. Either-way, there may be a high price to be paid for making public pronouncements.

Before making any public statement about your case, it is essential first to take legal advice. We are well versed in the pros and cons of allowing a situation to play out in public and can advise you as to the best course of action.

Contact a criminal law specialist

By the time a decision is made to charge you with an offence, you will have already wanted to seek our independent advice.

If you are arrested or know that the police wish to speak to you about such a fraud arising from a holiday insurance claim then make sure you insist on your right to free and independent legal advice.

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

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

Alternatively you can contact us using the form below.

Category Archives: News

In a case this week involving Jet2 Holidays, Nottingham couple Karl and Laura Hughes claimed that they had suffered sickness while on a package holiday. They said they had food poisoning as a result of eating contaminated food or drink or swimming in the hotel’s unsanitary pool.

In witness statements, Mr and Mrs Hughes said that they became ill on the second day of their holiday and were acutely ill for the remainder of the holiday. The witness statements were sent to Jet2 with an initial letter of claim.

Jet2 looked at the social media accounts of Mr and Mrs Hughes. They saw photos and comments posted by them during the holiday, indicating they were physically well while away and had enjoyed their holiday. As a result, Mr and Mrs Hughes did not start proceedings against the company.

Contempt proceedings even where proceedings not commenced

Jet2 however, decided to ask the court to start contempt of court proceedings against Mr & Mrs Hughes. This was on the basis that the witness statements were false, relying on the social media posts.

Mr & Mrs Hughes denied that the information in their statements was false. They made further statements setting out that they had complained to the hotel manager, and despite their illnesses, they had “put up a front” that they were having a great holiday. The social media posts were not a true reflection of their mood at the time.

Initially, a court decided that proceedings for contempt of court could not be brought as the statements had not been served as part of court proceedings. A higher court did not agree saying that the test was whether the conduct in question involved an interference with the administration of justice either in a particular case or more generally as a continuing process.

The court went on to say that even though Mr and Mrs Hughes had not yet started proceedings when the statements were sent that they were still capable of interfering with the administration of justice.

The issue of whether Mr and Mrs Hughes were in contempt of court has not yet been decided, but Jet2 now have permission to bring those proceedings. The moral of the tale is just because something does not happen “in court” does not mean that you cannot be in “contempt of court”.

What could happen?

If Mr and Mrs Hughes are found guilty of contempt of court, they could be sent to prison for up to 2 years or receive a fine.

It can be very tempting to make a false claim against an insurer, but they are now fighting back in the civil courts. In addition, you could face criminal prosecution for fraud, leading in some cases to a prison sentence and criminal conviction.

Contact a specialist criminal law solicitor

If you are arrested or know that the police wish to speak to you about such a fraud arising from a holiday insurance claim then make sure you insist on your right to free and independent legal advice.

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

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

Alternatively you can contact us using the form below.