Tag Archives: appeal

Additions to unduly lenient sentence appeals

The prosecution, via the Attorney General, has the right to ask the Court of Appeal to consider whether sentences for certain offences are unduly lenient.

unduly lenient sentence

How does the scheme work?

Anyone can ask the Attorney General to consider whether a case has resulted in an unduly lenient sentence. If the Attorney agrees an appeal will be lodged within 28 days of that sentence and the court will consider the matter.

This scheme is essential protection against sentences that are too lenient.

We have previously posted about the scheme here.

Can it be used for any offence?

There is a list of offences that the unduly lenient sentence scheme applies to.  It is a relatively extensive list, but the government has announced that further offences are soon to be added to it.

How often are appeals lodged?

The Attorney General does not invite the court to interfere lightly.  Even though around 1,000 requests for a review are made each year only a fraction are referred to the court.  Typically between 100 and 150 sentences are increased each year.

In all cases where an appeal is heard, we will fight extremely hard to prevent any increase in sentence.

unduly lenient sentence

What offences are to be added to the list?

The following offences will be added:

  • Abuse of position of trust: sexual activity with a child (s.16 Sexual Offences Act 2003),
  • Abuse of position of trust: causing or inciting a child to engage in sexual activity (s.17 Sexual Offences Act 2003)
  • Abuse of position of trust: sexual activity in the presence of a child (s.18 Sexual Offences Act 2003)
  • Abuse of position of trust: causing a child to watch a sexual act (s.19 Sexual Offences Act 2003)
  • Inciting a child family member to engage in sexual activity (s.26 Sexual Offences Act 2003)
  • Sexual activity with a person with a mental disorder impeding choice (s.30 Sexual Offences Act 2003)
  • Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity (s.31 Sexual Offences Act 2003)
  • Engaging in sexual activity in the presence of a person with a mental disorder impeding choice (s.32 Sexual Offences Act 2003)
  • Causing a person, with a mental disorder impeding choice, to watch a sexual act (s.33 Sexual Offences Act 2003)
  • Possession of indecent photograph of a child (s.160 Criminal Justice Act 1988)
  • Taking, possessing, distributing, publishing Indecent Photographs of Children (s.1 Protection of Children Act 1978)
  • Harassment: putting people in fear of violence (s.4 Protection from Harassment Act 1997)
  • Stalking involving fear of violence or serious alarm or distress (s.4A Protection from Harassment Act 1997)
  • Controlling or Coercive Behaviour in an Intimate or Family Relationship (s.76 Serious Crime Act 2017).

How we can help

If you have instructed VHS Fletchers in your case after your sentencing we will give you immediate advice if we have concerns that there may be a complaint that you have received an unduly lenient sentence.  Unfortunately, the process is out of our hands however and we have no control over whether or not a reference is made.

In the event of an appeal, a great deal of work can be done on your behalf to prepare your case for this next stage.  Thorough preparation can make all the difference as to whether or not the court of appeal interferes with your sentence.

If you face an appeal on the basis that you received an unduly lenient sentence or are concerned about any aspect of criminal law or sentencing then do not hesitate to contact your nearest office to speak to a criminal law specialist.

attorney general's reference unduly lenient sentence

Alternatively you can use the contact form below.



Proposals for a new sentencing code

Few people would disagree with the suggestion that sentencing law in England and Wales is a complete mess. The provisions that govern how a defendant is to be sentenced are both complex and disparate and to be found across a significant number of statutes.  The proposal is to replace the variety of provisions with a new sentencing code.

sentencing code

Why does this matter?

Research has shown that thousands of sentencing errors are made each year.  Many end up going completely undetected. Sometimes the mistakes make little difference in practice, but often the failure leads to unlawful sentences being imposed.

sentencing codeThe complexity of the statutory provisions is only one consideration.  There is also a large body of case law that mjust be taken into account. Again, we see many errors, most notably concerning protective orders where conditions imposed are often draconian and unnecessary.

Sentencing errors can lead to a failure to protect victims as well as unlawful or inappropriate sentences for defendants.  Any appeal proceedings that follow to put matters right will be costly.  Ironically the Court of Appeal often makes mistakes itself.

So, what is being proposed?

The Law Commission has proposed a ‘Sentencing Code’.  This will be a single Act of Parliament that will place all sentencing provisions in one place.

To achieve this, a two-stage process will take place:

  1. Minor amendments to existing statutes will be made to ‘tidy up’ the statute book.
  2. Immediately afterwards the provisions will be consolidated into one Act of Parliament (‘the sweep’).

This clean sweep of law will then lead to a single consolidated statutory provision resulting in a sentencing code that can be further amended in the future.

It is important to note that this procedure is a consolidating procedure  Apart from minor changes to legislation there will be no material change to existing law. There will be no increases to the existing sentences available to courts.

Will the sentencing code make a difference?

sentencing code
The Court of Appeal

Given the effect of this is merely to move sentencing law into one single statute, it is a reasonable question to ask whether this will make a difference.

The Law Commission carried out extensive testing of the proposals.  It was demonstrated that having a single reference point for sentencing leads to fewer errors. Errors will continue to be made, for all manner of reasons, but we should see a massive reduction.

When will these changes happen?

The first piece of legislation was laid in the House of Lords last week, and the provisions could be law in a matter of months. Much will depend on the legislative timetable and the uncertainty of the political situation at the present time.

When the relevant legislation is enacted, there will need to be a period of training for lawyers and judges before the new statute takes effect so it seems unlikely that the provisions will come into effect before mid 2020 at the earliest.

What happens until then?

Until that time we will continue to be alert on your behalf.

Our lawyers take great care to ensure lawful and proportionate sentences are passed and will not hesitate to take corrective action where that is required.

We prefer to work hard to avoid mistakes in the first place to avoid problems later.  As a result all of our advocates are highly trained in the complexities of sentencing law. Our ethos is  that we must ‘get it right first-time’.

If, however, you believe that your sentence before either the Magistrates’ Court or Crown Court was unlawful or excessive then please contact us immediately.

Contact a specialist criminal lawyer

The earlier we are involved in your case, the greater the opportunity for us to ensure that everything goes right at each step of your case.

If you are arrested or know that the police wish to speak to you about a criminal offence 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.

This will allow us to make sure that you are doing the right thing by answering police questions or exercising your right to silence.

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.

new sentencing code
VHS Fletchers offices across the East Midlands

Alternatively you can contact us using the form below.



Successful appeal against football banning order

Nottingham based solicitor advocate Graham Heathcote was recently instructed by a client to appeal the imposition of a football banning order imposed at Nottingham Magistrates’ Court.

The History of the case

football banning order
Solicitor advocate Graham Heathcote

Our client appeared before the Nottingham Youth Court for assaulting a police office in the execution of his duty and assault occasioning actual bodily harm.

This followed an incident at the bar close to Notts County’s Meadow Lane ground.  This was prior to the County v Coventry League 2 match.

The bar had chosen not to exclude Coventry City supporters on that day.  An hour before the match the police were called to eject some Coventry fans who were being unruly and disruptive.   Door staff had been unable to cope with the hostile group in the bar, and a smoke bomb had been let off inside.

Police also entered the terrace area of the bar to eject a male who had been aggressive towards the officers themselves. He complied with a request to leave but our client had client pushed the officer and attempted to strike him.

During the struggle to arrest our client, the officer felt pain in his right finger.  It was subsequently found to be broken.

Our client had entered a guilty plea in the Youth Court and as it was his first conviction received a referral order.  Unfortunately the court also imposed a football banning order preventing him from attending football matches within the UK.

It did not appear, however, that this was a football related offence and as a result our client decided to appeal the decision to impose the football banning order to Nottingham Crown Court.

 Advice and representation at appeal

football banning order
Trainee solicitor and litigator Freddie sails

In order to impose a football banning order it must be shown that the criminal offence was “football related.” The argument in this case was that the incident was unconnected to football.  Instead it was an incident that arose  upon the police attempting to remove people from a bar.

Upon a close examination of the evidence it was clear that this argument had merit.  As a result, Graham Heathcote represented our client at appeal, instructed by litigator Freddie Sail.

The appeal was opposed by the prosecution. The prosecutor maintained, as they had in the Youth Court, that the criteria for a football banning order had been met.  As a result it had been properly imposed.

Football banning order removed

Having considered the evidence and Graham’s representations the Crown Court judge and Magistrates agreed.  The appeal was successful and the football banning order was removed.

Our client was obviously delighted and could continue to attend football matches unobstructed.

Contact one of our football law specialists

If you are arrested or know that the police wish to speak to you about a football related offence 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.

VHS Fletchers offices across the East Midlands


Alternatively you can contact us using the form below.


Doctors in the Dock – appealing the Medical Practitioners Tribunal

Many in the medical profession have been up in arms following the recent High Court decision involving Dr Bawa-Garba (General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin), overturning the decision of the Medical Practitioners Tribunal.

medical practitioners tribunal serviceThe case had followed on from proceedings before the Medical Practitioners Tribunal which had ruled that Bawa-Garba should be suspended from practice for a period of one-year. That ruling was challenged by the General Medical Council, resulting in Bawa-Garba being erased from the medical register, which brought to an end her right to practice medicine.

The High Court observed that it reached ‘this conclusion with sadness but no real hesitation’.

Medical Practitioners Tribunal Decision Appealed

On appeal against this decision, the Court of Appeal has heard her removal for a “one-off mistake” had robbed the NHS of a “young and talented” doctor.  The original decision to suspend rather than dismiss the doctor was argued to be “humane and balanced”, whereas the GMC have argued that  “any other sanction undermined its rules and her manslaughter conviction.”

So, what is the background to this unhappy story?

medical practitioners tribunal
Nottingham Crown Court

In November 2015 Bawa-Garba was convicted at Nottingham Crown Court for an offence of manslaughter by gross negligence. She was sentenced to two years imprisonment, which was suspended.

This conviction came about due to her negligent care of a six-year-old boy, who died. An appeal against conviction in December 2016 failed.

In the later High Court proceedings, it was observed that ‘her failings on that day were “truly exceptionally bad” and that this must be reflected in the sanction.

So, why did the Medical Practitioners Tribunal (MPT) only order a suspension?

medical practitioners tribunalWhen the MPT heard the case, it had the benefit of hearing a substantial body of evidence about the pressures placed on Dr Bawa-Garba and the failings of others. In essence counsel for the GMC submitted that the Tribunal had in effect allowed evidence of systemic failings to undermine Dr Bawa-Garba’s personal culpability, and to do so even though those failings had been before the Crown Court which convicted her.

The Tribunal had therefore decided to find the Doctor less culpable than the jury had as a matter of law, and for that reason, the decision could not stand.

The High Court observed:

“The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance.

There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad.”

A crowd-funding campaign to assist Dr Bawa-Garba was set up. One of the doctors behind the crowdfunding campaign, Dr Moosa Qureshi, said:

”There needs to be greater transparency as to why these decisions were made and who made them. Many of us feel that Dr Bawa-Garba was unfairly discriminated against and scapegoated for multiple system failings that could easily have happened to any of us in the current political crisis of the NHS. We want patients to be protected and for this doctors need to be able to look after patients without fear that they will be blamed or worse struck off when working in unsafe and dangerous conditions.’

So, many believe that Bawa-Garba has been made a scapegoat for systemic failings in the NHS.

In a further twist to this story, the previous Health Secretary Jeremy Hunt ordered a review into criminal manslaughter so far as it affects medical practitioners.  The health secretary stated that clarity was needed about drawing the line between gross negligence and ordinary errors, and that ‘Doctors should learn from – not fear – mistakes.’

medical practitioners tribunalThe review, led by Sir Norman Williams (a former President of the Royal College of Surgeons), reported in June 2018.  In the introduction to the report, Sir Norman wrote:

“We hope our recommendations will change the environment by establishing a just culture and providing reassurance to healthcare professionals, patients and their families that gross negligence manslaughter cases will be dealt with in a fair and compassionate

The full report can be found here.

By any measure this is a sad case for all concerned and criminal practitioners will be keeping a watchful eye on the outcome of the Court of Appeal case.

Contact a crime and regulatory law specialist

medical practitioners tribunal
Crime and Regulatory solicitor Martin Hadley

If you are a professional person facing criminal proceedings then please contact our criminal and regulatory partner Martin Hadley immediately.

Martin will be able to provide free and independent legal advice in police interview.

If charged, we will provided affordable representation before either the Magistrates’ or Crown Court, and be able to provide advice with an eye to any future potential disciplinary proceedings such as those before the Medical Practitioners Tribunal.


The forensic testing scandal – is my conviction safe?

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?’

is my conviction safeRandox 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 is my conviction safe?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.

If you believe that inaccurate forensic testing may have led you to be wrongfully convicted (and that includes pleading guilty to an offence), please contact your nearest office to speak to one of our expert criminal lawyers.

is my conviction safe
Vhs Fletchers offices across the East Midlands

Alternatively you can use the contact form below to request a call back.  We can help answer your question ‘Is my conviction safe?’


The Psychoactive Substances Act 2016 – no laughing matter?

psychoactive substances act 2016‘Laughing gas’ is more properly known as Nitrous Oxide.  It was recently back in the news following a Court of Appeal ruling that the substance is controlled by the Psychoactive Substances Act 2016.

The Act makes it an offence to possess psychoactive substances with intent to supply.  In a certain number of limited cases, just possession a psychoactive substance alone is also an offence.

The appeals came about because of some cases reported in August 2017.  In those case, Judges had ruled that laughing gas remained exempt from control under the Act.

The issue for the appeal was whether Nitrous Oxide was a ‘medicinal product’.  If it was, then the offence could not have been committed.

In the four cases before the Court of Appeal, two appellants had been convicted after trial.  The remaining two had pleaded guilty.

Following the hearing of the appeals the court ruled:

‘We are satisfied that in the circumstances of these cases the nitrous oxide in question could not be categorised as a medicinal product and therefore was not an exempted substance. In our judgment, the matter is clear on existing authority.’

So, is the matter settled?

The key words in the judgment are ‘…in the circumstances of these cases.’

psychoactive substances act 2016
The Court of Appeal

So, to answer this question you need to understand a little more about the purposes of the Psychoactive Substances Act 2016. The Act applies to substances by reference to their effects.  As a result there isn’t a list made up of substances and their individual chemical composition.  The law is drafted to only criminalise their supply for the purpose of recreational drugs.

The argument has been put that because Nitrous Oxide is undoubtedly used for medical purposes, it would fall squarely within the medicinal products exemption in the Psychoactive Substances Act 2016.

The prosecution must prove an important ingredient of the offence.  This is that any defendant in question intended to supply the substance for consumption for its psychoactive effects rather than for medicinal purposes.

As a result, liability under the Psychoactive Substances Act 2016 does not depend solely on the chemical composition or the effect of the substance, but also on the intent of the person possessing it.

In one of the appeals, the court held:

‘…the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.’

This case by case approach entails the possibility that different products with precisely the same chemical composition may fall within or outside the definition of medicinal product.  This will depend on the circumstances of the individual case before the court.

Seek expert criminal advice if you are investigated for offences under the Psychoactive Substances Act 2016

These cases illustrate how complex the criminal law can be.  Headlines in newspapers or online can be confusing, particularly when even the courts can come to different conclusions on the same set of facts.  In cases such as this there will be differences of scientific opinion.  It also takes some time for an appeal court to clarify the law.

In relation to Nitrous Oxide, it may be that further appeals will follow which may again alter the interpretation of the law.

If you are being investigated for any drug allegation then you will want expert advice from a criminal law specialist who is up to date with the current law.  Please contact your nearest office to discuss your case.

psychoactive substances act 2016
VHS Fletchers crime and regulatory solicitors offices across the East Midlands

Our independent advice and assistance in a police interview under caution will always be free of charge to you, whether you are under arrest or being interviewed voluntarily, whether you are in a police station or at your home address.

You can find a number of other reasons why you should seek our legal advice here.

You can also contact us using the form below.





Attorney General’s Reference of an Unduly Lenient Sentence

Can My Sentence Be Increased?

The sentencing process is the beginning of the end for many defendants.   They can receive and accept their punishment and prepare to move on with their lives at the conclusion of any sentence imposed.  For some, however, the anguish is not over as an appeal against the length or type of sentence might be looming because it is arguably an unduly lenient sentence.

Who Can Appeal?

attorney general's reference unduly lenient sentenceThe Attorney General and the Solicitor General have the power to apply for leave to appeal sentences for some offences to the Court of Appeal.  This will be where the sentence is viewed as ‘unduly lenient’.

The Attorney General may become aware of any given case in different ways.  it might be because the prosecution has referred it for consideration.  Alternatively it might be because any other person, such as the victim or a member of the public, has brought it to their attention.

What Offences Does This Apply To?

There is a long list of offences which may be referred for consideration by the Court of Appeal.

  • Any offence triable only on indictment.  These will include, for example, murder or robbery. The provision also includes youths who are tried before the Youth Court for indictable only offences.  More and more frequently, this will include serious sexual offences.
  • A range of offences that are sentenced in the Crown Court.  These will include offences of violence, sexual offences, drugs, immigration, slavery and trafficking.
  • A range of terrorism offences.

Is There a Time Limit?

A notice of appeal must be filed with the Court of Appeal no later than 28 days after the sentencing hearing.  There is no power available to extend this time limit.

What Happens If There Is an Appeal?

attorney general's reference unduly lenient sentenceThe Court will apply a three stage procedure when considering an unduly lenient sentence. The court has expressed its role as follows:

‘We first of all consider the question of whether to grant such leave. It is important in approaching such matters to understand the safeguards that Parliament thought were appropriate to build in to the departure from what was then the law that there no question of increasing a sentence arose to the new procedures that enabled such a reference to be made.

Those new procedures required a number of steps to be taken before any such sentence could be increased. The first was that the Attorney General had to consider the matter and decide for himself whether he considered the sentence to be unduly lenient.

The second was that he then had to exercise his discretion as to whether there should be a reference because he was given a power to refer and there was no requirement that he should do so.

The third matter was that the court then had itself to consider whether to accept and grant leave for the referral.

Thereafter the court has to consider whether it considers the sentence to be unduly lenient and the final safeguard is that the court has to determine for itself whether, even if it does consider it unduly lenient, it would be right in the exercise of its discretion to increase that sentence. Each one of those steps was clearly a step that Parliament thought to be a necessary safeguard in changing the law.’

What Is an Unduly Lenient Sentence?

It will not be easy to spot such a sentence.  This is because the sentencing exercise is always fact specific. In cases where there are sentencing guidelines in place it may be easier to identify unduly lenient sentences.  This will not always be the case however.  The task is often much more difficult when there are no guidelines.  Alternatively it may be a case where there is particularly powerful mitigation.

The Court of Appeal test for undue leniency is:

‘A sentence is unduly lenient where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.’

What Happens If a Sentence Is Found to Be Unduly Lenient?

Where the Court considers the sentence unduly lenient, it has a discretion as to whether to exercise its powers:

‘Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where, in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned.’

Next Steps

If you have instructed VHS Fletchers in your case after your sentencing we will give you immediate advice if we have concerns that there may be a complaint that you have received an unduly lenient sentence.  Unfortunately, the process is out of our hands however and we have no control over whether or not a reference is made.

In the event of an appeal, a great deal of work can be done on your behalf to prepare your case for this next stage.  Thorough preparation can make all the difference as to whether or not the court of appeal interferes with your sentence.

If you face an appeal on the basis that you received an unduly lenient sentence or are concerned about any aspect of criminal law or sentencing then do not hesitate to contact your nearest office to speak to a criminal law specialist.

attorney general's reference unduly lenient sentence

Alternatively you can use the contact form below.


Infant Class Size Appeal – Nottinghamshire 2016

Infant Class Size Appeal?

nottinghamshire infant class size appeal
County Hall

Parents submitting a second appeal as a result of the adjudication that the 2016 admissions criteria were unfair will need to check whether they will be involved in an Infant Class Size appeal (ICS).  This will occur where no classes in the admission year have a class size of less than 30 pupils.  The process is governed by education law relating to this particular issue.

This short article gives some advice as to how best to approach Part A of the fresh appeals.

Part A of the School Admissions Appeal

In Part A of the appeal process the Appeal Panel will have to consider whether:

  • admitting one extra child would breach the Infant Class Size limit of 30
  • whether the admission arrangements were lawful
  • if so, whether the admission arrangements were correctly and impartially applied to your child
  • was the decision to refuse admission reasonable in the circumstances of the case

In an Infant Class Size appeal, the panel can find in your favour at Part A if:

  • there isn’t in fact an Infant Class Size issue e.g. one class has less than 30
  • the arrangements in place were unlawful or incorrectly applied AND the child would have been offered a place otherwise
  • the original decision was legally unreasonable

The panel can find against you in Part A where:

  • the admissions arrangements were lawful and correctly applied or
  • the admission arrangements were unlawful and incorrectly applied BUT you child wouldn’t have been offered a place even if properly applies, and
  • the original decision to refuse you a place was not legally unreasonable

Writing Your Appeal Statement

As a result, when drafting your written statement of appeal, you will need to bear in mind the following:

  • It will be best that you draft a new appeal document rather than rely upon your old statement.  This will allow you to structure your argument to take into account the facts of the decision of the Office of the Schools Adjudicator which answers the second of the Part A questions in your favour.
  • Proceed on the basis that you will have to pursue an Infant Class Size Appeal unless told otherwise.
  • Although the council representative ought to accept the criteria were unlawful, that concession hasn’t yet been made.  As a result, you will wish to make reference to the key features of the Adjudicator’s report including the admission codes that have been breached.  You will also want to stress that although the report applies to a single school it is of application across Nottinghamshire.
  • You may wish to rehearse the failure in the consultation process by the council that has led to this situation arising.
  • Although you may not have this information yet, you will wish to set out a belief that your child would have received a place at your desired school under the fair criteria.  If you know this as a fact at this stage then you ought to set it out in the statement.  This will arise, for example, where you know that a child out of catchment without a sibling in the school has been admitted in preference to your child.

Documents In Support

Documents that could usefully be attached in support are:

  • the Adjudicator’s decision
  • a timeline (and Fairness for Siblings will no doubt be able to help) as to the failure to consult
  • the relevant Codes of Practice with the codes said to have been breached highlighted

infant class size appealThe deadline for submission of an indication of a wish to appeal is 6 March 2017.  The deadline for submission of the paperwork is 20 March.  Any further information can be submitted up to 5 working days before the appeal is to be heard.

The response should contain additional information from the council that will either support or undermine your arguments.  You will have an opportunity to decide how best to deal with that material then.

Parents Against the Nottinghamshire Sibling Change have prepared a letter as a starting point for your enquiries.

The Adjudicator’s decision can be found here.

infant class size appealWe will post information about how to approach Part B of the process soon, as well as some information to prepare 2017 parents for what might happen next.

Contact Us About Nottinghamshire School Admissions

If you are affected by these issues surrounding Nottinghamshire school admissions and how to prepare and Infant Class Size appeal for the year 2016/2017 then please contact us by email here or telephone Andrew Wesley on 0115 9599550 to discuss steps that you can take and whether we are able to help with this area of education law.

Joint Enterprise Appeals

VHS Fletchers, as well as dealing with current criminal cases, also hold a contract with the Legal Aid Agency to provide advice on prison law matters and appeals.  This means that the advice, assistance and representation that we are able to give does not cease at the conclusion of any current criminal case.  We will be able to advise and assist in any joint enterprise appeals.

This is of importance to two clients that our prison law specialist Irene Tolley  represented at trial in 2004, when working for Varley Hadley Siddall solicitors.

At the time the case was one said to have ‘made British legal history’ , with the prosecutor announcing that he did not know of any comparable case.  The officer in the case described the prosecution as ‘unprecedented’, with the Crown Prosecution Service describing the case as ‘the first of its kind’.

On behalf of the clients Irene and counsel pursued appeals to the Court of Appeal and subsequently to the Criminal Cases Review Commission but without success.

Following legal developments earlier in the year set out below, Irene was in the process of locating the clients as they made contact with her.

On 18 February 2016 the Supreme Court delivered a landmark judgement in the case of R v Jogee.

This ‘re-stated’ the principles of criminal joint enterprise in murder trial’s.  The court decided that for the last 30 years the interpretation of the law had been in error, ‘…equat[ing] foresight with an intention to assist, as a matter of law; the correct approach is to treat it as evidence of intent’.

The difference now is that a jury must be sure that a secondary party, a person who did not themselves carry out the fatal act, must now intend that the offence is carried out before they can be convicted of murder.

The Supreme Court were careful, however, to stress that the decision would not open the floodgates to 30 years of appeals on this issue:

‘…it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction.  Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time.  That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken…’

As a result, the pursuit of any appeal after such a period of time cannot simply rely upon a perceived ‘change of law’ in joint enterprise.  Prospective appellants will have to demonstrate that as a result there has been ‘substantial injustice’ to the individual looking at the case as a whole.

Irene, along with original counsel, are taking these appeals forward, but there is much further work to do.

Should you wish to discuss a potential joint enterprise appeal with Irene, please contact her at the Nottingham office by letter or telephone 0115 9599550.  Alternatively, she can be contacted by email here.

Irene is able to assist with other appeals and a range if prison law matters.  Information about that can be found here.

VHS Fletchers Joint Enterprise

UPDATE:  Commentary from Andrew Wesley about the Jogee decision and joint enterprise can be found on the ITV website here.