If you are being sentenced for an offence, the court will be aware of, and may take into account, any convictions you have. Whether this has any impact upon the sentence passed will very much depend on the date of those convictions and the relevance of any to the more recent offending.
If you plead not guilty, the court or jury can only be made aware of any convictions in certain circumstances. The relevant law is known as the ‘bad character provisions’.
What are the circumstances?
Prior to these provisions being introduced the court could be made aware of any bad character by way of similar fact evidence. So, for example, if a burglar had a particular or unusual way of committing offences, a Modus Operandi or MO, the detail could be given to the trial court. Whilst there were other ways in which evidence of bad character could be admitted, the general presumption was against evidence of previous convictions being used.
The new provisions expanded on the old law.
A defendant’s previous convictions may be admitted in court in the following circumstances:
all parties agree
a defendant introduces them himself
it is relevant to an important matter in issue between the defendant and the prosecution
it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
it is necessary to correct a false impression given by the defendant
the defendant has made an attack on another person’s character
If you said in evidence when charged with theft, that you would never steal anything, and you had convictions for theft, it would mean the court is likely to be told about them.
If you called the prosecution witness a liar, you might find your convictions before the court.
As with the old law, any convictions based on your ‘MO’ could also be introduced. So, if you have previous convictions for burglary and are now charged with burglary, the prosecution may apply to admit this evidence.
Does this only apply to defendants?
You can also make an application for the bad character of a non-defendant or witness to be out before the court in certain circumstances.
How will instructing a specialist in criminal law help?
The law in respect of the bad character provisions is extremely complicated, there is extensive case law on the subject and this article is a very brief overview. Some practitioners are of the view that there is little that can be done to avoid bad character evidence being admitted – this is not something that we agree with, no concession should be made unless and until a detailed analysis of the circumstances has been carried out.
We can oppose any application on your behalf or make an application for a non-defendant’s character to be introduced.
We have the knowledge and experience to make these arguments on your behalf and guide you through the process.
The introduction, or otherwise, of any convictions may play a crucial part in the outcome of any trial. If you would like to discuss any aspect of your case, please contact name on tel or email.
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Circumstantial evidence is widely misunderstood. Many people cannot understand how a case can be advanced without primary evidence of wrongdoing.
To illustrate this, we can use two examples relating to burglary.
Burglary can be committed in quite a few different ways, but the most common allegation is that a person entered a building as a trespasser and stole something that did not belong to them.
Scenario 1:
David breaks into a home. He is seen by a neighbour who calls the police. When the police arrive they arrest David inside the house, he has jewellery in his bag and was intent on stealing more valuables.
This is a classic case of burglary, with direct evidence of David being in the property and having stolen something.
Scenario 2:
A neighbour hears a house alarm and goes to investigate. Upon seeing a man, David, acting suspiciously further down the street. The neighbour apprehends the man. When the police arrive, they discover that David has jewellery which is traced back to a local house that has been burgled.
In this case, there is no direct evidence that David entered the property, which is a vital element of the offence of burglary. However, his presence in the vicinity and possession of the stolen property (referred to as ‘recent possession’ in law) is strong circumstantial evidence of David having entered the property. How otherwise did he come into possession of the jewellery? There may be other reasons, but that will be something for David to explain when interviewed by the police).
In law, circumstantial evidence can be explained in this way:
“A circumstantial case is one which depends for its cogency on the unlikelihood of coincidence: circumstantial evidence works by cumulatively, in geometrical progression, eliminating other possibilities”.
The prosecution seeks to prove separate events and circumstances which can be explained rationally only by the guilt of the defendant.
Those circumstances can include opportunity, proximity to the critical events, communications between participants, scientific evidence and motive.
The subsequent conduct of the defendant may also furnish evidence of guilt, for example evidence of flight, fabrication or suppression of evidence, telling lies or unexplained possession of recently stolen property.
The question for the jury is whether the facts as they find them to be drive them to the conclusion, so that they are sure, that the defendant is guilty (McGreevy v DPP [1973] 1 WLR 276).
Some degree of caution must however be exercised. It has been held that circumstantial evidence must always be:
“…narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. …It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”
(Teper [1952] UKPC 15).
Teper and McGreevy were considered in Kelly [2015] EWCA Crim 817 in which Pitchford LJ said:
“The risk of injustice that a circumstantial evidence direction is designed to confront is that (1) speculation might become a substitute for the drawing of a sure inference of guilt and (2) the jury will neglect to take account of evidence that, if accepted, tends to diminish or even to exclude the inference of guilt.
However, as the House of Lords explained in McGreevy, circumstantial evidence does not fall into any special category that requires a special direction as to the burden and standard of proof. The ultimate question for the jury is the same whether the evidence is direct or indirect: Has the prosecution proved upon all the evidence so that the jury is sure that the defendant is guilty? It is the task of the trial judge to consider how best to assist the jury to reach a true verdict according to the evidence.”
Conclusion
As can be seen from the above analysis, circumstantial evidence can be powerful and compelling evidence against a person accused of criminal activity, but it must always be analysed with the utmost care.
As experts in criminal law, we are acutely aware of the dangers of circumstantial evidence and take care to ensure its relevance is appropriately understood and not overestimated.
Instruct an expert in criminal law
Seeking legal advice at the earliest opportunity will allow us to provide advice to you about how the evidence in a case fits together.
If you are arrested or know that the police wish to speak to you about any criminal allegation 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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The forensic Testing Scandal – Is My Conviction Safe?
New details have emerged about forensic testing deficiencies at two of the country’s leading laboratories. The police are currently investigating the circumstances. As a result of this investigation a number of people have been arrested. People will be asking themselves ‘Is my conviction safe?’
Randox Testing Services (RTS) and Trimega Laboratories handle samples for some of the most high-profile criminal and family law cases. As a result the accuracy of the tests are of paramount importance to people facing criminal prosecution for offences ranging from drink driving to murder.
Home Office Minister Nick Hurd told parliament:
‘Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable. RTS was mainly commissioned by individual police forces when investigating criminal offences.’
It is believed that the results from as many as 10,000 tests could be under review.
Is Your Conviction Safe?
If a conviction in your case rested wholly or partially on the reliability of forensic tests, it is essential that you seek further legal advice immediately.
While the Crown Prosecution Service will be carrying out a review into criminal cases this will take a considerable period of time. Some reports are mentioning a three year time frame. Many will be questioning in any event whether the body that brought the prosecution in the first place is ideally placed to make decisions as to the safety or otherwise of a conviction.
Criticisms of the laboratories have previously been raised over the years, but it appears that the police and the prosecution continued to be content with the results produced.
Those who might be affected by an analysis by these laboratories will, therefore, wish to consider whether any further forensic testing ought to take place, and even whether or not there are grounds to appeal. All convictions involving these laboratories will need to be considered on a case by case basis.
Even if your cases did not involve the two laboratories currently under investigation, this scandal throws a spotlight on the hidden world of forensic testing and may call into doubt results from other forensic testing providers.
How we can assist with an unsafe conviction?
Regardless of whether VHS Fletchers handled your case initially our experienced team of criminal defence lawyers has the expertise to ensure the safety of your conviction is beyond question.
Alternatively you can use the contact form below to request a call back. We can help answer your question ‘Is my conviction safe?’
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Closure of Newark Custody Suite
Response to Consultation
This is the response of VHS Fletchers to the consultation paper released by the Legal Aid Agency (LAA) following the notification on 25 October 2017 of the closure of Newark custody suite with effect from 6 November 2017.
All Newark arrests from that date will be taken to and processed at Mansfield Custody Suite. The residents of Newark have already lost one public resource, that being the ability of the police station to process prisoners. There is a very real risk that they will lose another – detainees receiving advice from solicitors local to Newark.
The consultation document invites responses to three alternative revisions to the Newark and Mansfield Police Station Duty Solicitor Schemes. Only one of those appears to put the needs of those from Newark who are arrested first.
Since the consultation document was published there have been two important indications from the police which impact upon the proposals:
Cases that are identified as Newark cases will continue to be charged and either bailed or held to appear at Nottingham Magistrates’ Court rather than Mansfield Magistrates’ Court.
The police will continue to contact the Newark Duty Solicitor Scheme in cases which are identified as “Newark arrests” and will ensure that the Duty Solicitor Call Centre (“DSCC”) is informed in all cases where the detainee was arrested for an offence committed in Newark.
It follows from these indications that Mansfield custody suite is able to and intends to identify cases that have historically been dealt with at Newark police station. As a result, they should be able to direct those who seek the advice of a duty solicitor to a firm local to Newark.
The proposed options for changes to the scheme can be summarised as follows:
That the Newark Police Station Duty Scheme is merged with the Mansfield Police Station Duty Scheme with effect from 1 January 2018 with members of an extended Mansfield scheme covering both Mansfield and Newark police stations.
That the Newark Police Station Scheme is retained as a separate scheme and Duty Solicitors on the Newark rota will be directed by the DSCC to attend at Mansfield police station.
Newark Police Station Scheme retained as a separate scheme and firms post 1 January 2018 can elect to join either the Mansfield police station duty rota or standalone Newark scheme (if retained under option 2)
The LAA have helpfully indicated that they prefer option 1. The reason given is that options 2 and 3 are reliant upon the police being able to identify to the DSCC “Newark cases”. A more cynical view might be that the LAA and DSCC would have one less scheme to administer under option 1, resulting in an inevitable reduction in administration costs.
Fortunately, since the consultation document was published, the police have set out their intention to continue to identify Newark cases at the point of arrest and charge.
As a result, there appears to be no requirement for option 1 to be adopted unless there are ulterior motives on behalf of the LAA.
VHS Fletchers supports Option 2 for the following reasons:
This firm’s investment in Newark
Newark crime solicitor Ian Carter
When new legal aid contracts were to be awarded this firm chose to apply for a contract for a new Newark office. The closure of Newark custody suite was not anticipated. The office is staffed with two crime solicitors local to Newark – Ian Carter and Barbara McDonnell. We have since recruited a further Newark based lawyer – Legal Executive Advocate Nikki Carlisle – signalling a clear indication to continue to develop our business there.
Of course, we are in business. The rationale behind the investment that we make in training and recruitment of duty solicitors is that they provide access to new work through the duty solicitor rotas. Option 3 supports those firms who, like us, have chosen to locate their offices in Newark in order to provide legal aid services to that particular community.
Newark deserves its own duty solicitor rota
Newark legal executive advocate Nikki Carlisle
Newark-on-Trent is the largest urban area within the Newark and Sherwood District. It has a population of just over 37 000 residents. Of the three firms in Newark that currently undertaking criminal Legal Aid work, only our firm has office both in Mansfield and Newark.
Should Option 1 be adopted, Newark residents who are detained at Mansfield police station may very well be represented by a duty solicitor from a firm who only has an office in Mansfield. It is understandable that suspects will usually choose to have continuity of representation. This might be either whilst they remain on police bail, under investigation or following charge when the matter appears at court.
Prohibitive journey times
However, in seeking continuity, such clients would face a journey of 20 miles simply to see their solicitor to give instructions and take advice. By car that journey takes between 40 and 50 minutes. By public transport this time rises to 1 hour and 30 minutes for a single journey.
The same situation will of course arise in relation to residents of Mansfield who are represented by a duty solicitor who only has an office in Newark. It is true that many of those that require the services of criminal legal aid solicitors are vulnerable themselves and on a low income that would make such a journey very difficult.
It is our view that it is both unreasonable and unconscionable to expect those being investigated for criminal offences to have a return journey of three hours simply to see their solicitor. This stress and expense would be imposed on top of the emotional burden that the investigation of proceedings impose on any individual.
Local legal aid solicitors should be supported
Newark crime solicitor Barbara McDonnell
Option 2 supports those criminal legal aid firms who have chosen to locate their offices in Newark. This is in order to provide legal aid services to that community. It would mean that the arrangements within Option 2 could commence immediately following the closure of the Newark Custody Suite. Newark based firms would not have to suffer the inevitable financial hardship of not having access to Duty Solicitor work for a period of two months.
Such a decision would be seen as supportive of a legal aid provider base that it is acknowledged is financially fragile.
Perverse consequences of merging two duty schemes
The perverse consequences of Option 1 would be to permit automatic access to Newark residents requesting the duty solicitor to firms solely based in Mansfield. Access to such Mansfield residents would be granted to firms solely based in Newark.
Whilst some firms may see there is a financial advantage in having a place on a merged duty scheme following the closure of Newark custody suite, this would be to ignore the needs of local Newark residents. Financial advantage should never be allowed to outweigh the impact on those we represent and assist who are often ill-equipped to represent themselves.
On this basis, Options 2 and 3 would be unattractive and unacceptable to clients where the duty solicitor may or may not be based geographically convenient to them.
An increase in LAA costs?
The LAA will have to budget for increased travel claims from Newark firms to Mansfield custody suite following the closure of Newark custody suite. An additional consequence is likely to be that the LAA has to fund more instances of advice and assistance in the police station. It seems likely that clients, once they discover where their duty solicitor is based, will want to transfer to a local firm. Where the duty solicitor has been instructed a second fee may be properly claimable by the second local firm nearer to a suspects home address
Clients to choose for themselves
Following the closure of Newark custody suite, if clients wish to choose a geographically distant firm then that must be a matter for them. To have a geographically distant firm inflicted upon them is a separate matter that should be avoided where possible. The risk of a reduction in access to justice must be apparent to all who consider the issue. The problem would be avoided by the adoption of Option 2.
Instruct a Newark crime solicitor
VHS Fletchers criminal solicitors – Newark office
Despite the closure of Newark custody suite, the best way to ensure that you instruct a solicitor local to you if you are a Newark resident is to make sure you ask for VHS Fletchers if you are arrested and detained by the police. We offer free and independent legal advice on 01636 614013, 24 hours a day, 7 days a week, 52 weeks of the year.
If you know the police want to speak to you, contact us and we will be able to make the necessary arrangements for you to be interviewed.
Should you face proceedings at either the Magistrates’ or Crown Court then we will see you at our Newark office to take your instructions and give you expert advice.
Please use the contact form below if you wish to email your enquiry.
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Education Law and Criminal Defence Solicitor Clare Roberts was welcomed by students at West Bridgford School on the afternoon of Monday 21 September. Following an invitation she delivered a talk about ‘Routes into Law’ to sixth form students who are contemplating studying law at university.
The talk focused on university applications including what to do if you do not get your expected grades, as well as the proposed changes in the route to qualification as a result of the proposed scrapping of the Legal Practice Course in 2020.
The students who attended the talk had lots of questions to ask about studying law at university. Clare was also able to help with how the training within a firm thereafter will work.
Clare was really impressed with how knowledgeable the students were about their career options but also impressed by the careers education scheme run by Caroline Nolan at the school, which sees a variety of different professionals give talks to sixth form students at the school over the next few months.
Positive feedback for Clare’s presentation
It appears that the students were equally impressed by Clare, who received some positive feedback. We hope we will be able to assist this and other schools again in the future.
If you think your students might be helped by a presentation such as this one then please contact us using the form below. It is likely that we will be able to provide a solicitor local to your school or college to assist with any information you might need.
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Our solicitors are often instructed in cases involving allegations of domestic violence. The complainants in some of these cases do not support the prosecution. This lack of support was indicated at a very early stage. None of the witnesses made statements when the police were investigating the allegations. The prosecution try to rely on hearsay res gestae evidence.
As a result, the prosecution has sought to rely entirely on hearsay evidence. In particular, the res gestae exception as preserved by Section 11(4) Criminal Justice Act 2003 has been relied upon.
The test for admitting res gestae evidence
Evidence amounts to res gestae when “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”.
This principle has been developed in subsequent case law. As a result the following points have been established which the court should consider in deciding whether to allow a Prosecution application to admit the evidence:
Ultimately, the Court has to determine whether the possibility of concoction or distortion can be disregarded;
The court will need to look at the particular circumstances in which the relevant statement has been made.
It must be satisfied that that the event was so unusual, startling or dramatic that it was the predominant thought of the witness.
Their statement was an instinctive reaction so there was no real opportunity for reasoned reflection.
The statement must be closely associated with the relevant event. The court must be sure that the event was still operating to effect the mind of the witness when the statement was made.
Does the case have particularly features which relate directly to the possibility of concoction or distortion. This might include evidence of fabrication. The court must be satisfied that there was no such possibility of concoction or distortion.
Any issues such as mistakes in the account given are not matters relevant to admissibility of the evidence but factors the court will consider in deciding what weight to give to such evidence.
There is clear case law that the prosecution should not make an application to admit res gestae to circumvent other statutory hearsay provisions.
What evidential matters will the court look at?
The issue of the timing of the statement will be key to any application. These will include:
when the victim called the police
how soon after the incident the victim gave the account said to be res gestae
These are not the only factors that the Court should consider however. The Court will also need to look at:
whether there is any supporting evidence for example visible injuries
the victim’s demeanour when first witnesses attend
their subsequent words and behaviour
is there an accurate transcription of recorded evidence such as 999 calls, police bodycam footage or CCTV evidence
where the victim has made more than one statement, the accuracy and consistency of those statements will need careful consideration
if there has been more than one telephone call or electronic communication have been made by the same person?
Ultimately each case has to be considered on its own facts.
Should the prosecution give notice of an application?
The Criminal Procedure Rules do not require the prosecution to give notice of an application to admit hearsay evidence under the res gestae principles. Any notice given very much depends on the prosecutor dealing with the particular case. Where an application is made in advance and refused the case will end at that stage unless there is other admissible evidence to secure a conviction.
Even where a court admits res gestae evidence it must still evaluate that evidence in the usual way. The prosecution must still proved its case to the required standard.
Exclusion of hearsay evidence under section 78 PACE 1984
A defendant has an opportunity to apply to exclude evidence of res gestae. If a court has admitted the evidence, application can be made under Section 78 of Police and Criminal Evidence Act 1984. The court has a discretion to exclude evidence which would otherwise be admissible.
For example, there may be cases where the prosecution have failed to take sufficient steps to ensure a witness’s attendance at court. The prosecution might have purported to tender the prosecution to the defence. This means that the defendant would be at liberty to call the witness.
Circumstances like these might permit a persuasive argument that the defendant has been denied an opportunity to test the evidence through cross examination of the witness.
An application to admit hearsay evidence should be an application of last resort. In many cases the prosecution will attempt such an application when a witness might be available to give evidence as to the facts.
In the case of R v Andrews it was stated that a court should “strongly deprecate any attempt in criminal prosecutions to use the doctrine [of res gestae]as a device to avoid calling, when he is available, the maker of the statement”.
Contact a specialist criminal defence solicitor
On behalf of a defendant, a solicitor must make sure that the prosecution does not use a res gestae application to place otherwise inadmissible hearsay evidence before the court. Solicitors must ensure that the statutory and procedural safeguards are used to ensure a defendant’s right to a fair trial.
A defendant will wish to instruct a solicitor who is alive to all of the issues relating to this evidence and prepared for an argument at short notice against the admissibility of re gestae.
Legal aid will often be available to ensure that the defence of your case will be free of charge to you.
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Nottingham crime solicitor Lauren Fisher secured a not guilty verdict for her client following careful cross examination of a witness. He faced an allegation of common assault. He was said to have punched his partner once to the face when drunk. She had visible injuries – bruising and swelling to her cheek bone.
Preparation of cross examination
In order to present your best case at trial, an experienced advocate will plan how best to ask the questions. For example, in this case, Lauren would have to question the witness to suggest that she was not telling the truth. If a witness’s truthfulness is challenged immediately, it might be unlikely that they help an advocate with other information that they could give.
As a result, Lauren questioned the witness first to establish that a third person had been present during the incident. The witness, in answer to questions, confirmed that this person was a mutual friend who would not favour one party over another. They had no reason to lie that the witness could think of.
This information was important as the third person was to be called as a witness for the defence.
Lauren then moved on to more contentious issues. She cross-examined the witness on the important differences between the account she gave in her statement and the evidence she had given to the court.
At one point the witness conceded that she had “tried to contact the police to change my statement as I knew it did not make sense”. This was an important concession by the witness.
Self-Defence raised
Our client’s defence was that he had been acting in self-defence but the injury was accidental. He maintained that he was being hit by both the complainant and her friend. Perhaps unsurprisingly, if this was true, her friend had not given a statement to the police.
A statement had been taken by Lauren from the mutual friend who had been present. Unfortunately the police had failed to seek accounts from anybody else who had witnessed the incident.
Closing speech dealt with the detail
In closing, Lauren was able to outline all of the problems and inconsistencies with the account that the witness had given under cross examination. She was able to point to the consistent account given by her client and the third party.
After due consideration, the Magistrates found her client not guilty.
Lauren’s client took the time to thank her for the work that she had put into his case. He wrote:
“Hi Lauren, I’m very happy with what happened today. You are a good solicitor. The way you handled the whole situation was good. Thank you again for helping me”
Contact Nottingham crime solicitor Lauren Fisher
Nottingham crime solicitor Lauren Fisher
Whether you face a police investigation or proceedings before the Magistrates’ or Crown Court you will wish to instruct a solicitor who will spend the time preparing your case. This might involve making sure that advice on the law is correct. If could be giving careful advice on plea or sentence. In this case it involved preparing a structure for cross examination of a witness to ensure Lauren’s client had the best opportunity for a not guilty verdict.
If you want to contact Lauren to discuss a case then please call her on 0115 9599550. Alternatively you can use the contact form below.
Laura’s client was charged with another accused of causing grievous bodily harm with intent. The allegation was that the complainant had been assaulted with a weapon, probably a bat, as a result of his unwanted attentions in relation to our client’s mother.
The injuries involved fractures to the complainant’s face. Blood had been lost by the complainant. It was the prosecution’s contention that this blood evidence could make a jury sure that Laura’s client had been one of those who took part in the attack.
A favourable outcome to the case was extremely important to her client, not least because the Sentencing Guidelines for this offence suggested that if convicted he could expect to receive a sentence that would start at 6 years in prison.
The case required careful preparation. The witness had no recollection of the incident which led to his injuries. They were of such severity, however, that he must have been subject to a serious assault. Although Laura’s client was now asserting that he had not taken part in the assault, he had not told the truth to the police during the early stages of the investigation.
Expert Evidence
The Crown maintained that it’s expert analysis of the blood evidence was decisive and claimed that if would offer the jury no alternative but to conclude that Laura’s client had been involved.
As soon as the blood evidence was disclosed, Laura instructed a respected expert, Gillian Leak of Principal Forensic Service to provide a report on behalf of her client.
Despite early service of these conclusions and the seniority and experience of our expert the Crown proved intransigent in relation to the case. There was resistance to an early conference between experts to find points of common ground. It transpired during the course of these negotiations that the Crown expert had not been given the entirety of the Crown case in order to further review his findings.
Although it was clear to Laura in March 2016 that the Crown’s view of the blood evidence would be unsustainable at trial, the prosecution continued nonetheless. Problems in the complainant’s case were highlighted during cross-examination. Most importantly, the Crown expert conceded many points in our client’s favour during questioning.
Belatedly, the Crown saw reason dropped the case against Laura’s client half way through the trial at Nottingham Crown Court and he was found not guilty. This was six months after Laura had served the evidence and made representations about the wisdom of the prosecution.
Contact Us
Crown Court cases are often complicated and steps will need to be taken to challenge what at first glance appears to be conclusive evidence. Please contact Laura if you have a case before Nottingham Crown Court on 0115 9599550 or email her here. Alternatively, find your closest office here.
