Tag Archives: conviction

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What is a racially aggravated offence?

In recent years legislation has been enacted to ensure that crimes demonstrating a hostility towards certain groups of people are treated more seriously than before.  If an offence is said to be racially aggravated, then you should expect a more significant sentence if convicted.

What does it mean for an offence to be racially aggravated?

An offence is racially aggravated if, at the time of the offence, you demonstrate toward the victim hostility based on his membership of a racial group or the offence is motivated by that hostility.

So, shouting racist abuse or making racist comments will make an offence racially aggravated.  An offence will also be deemed racially aggravated where no comments are made but the offence is committed against someone because of their race.

Offences as a result of hostility toward a religious group, rather than due to race, are treated in the same way.

The fact that the victim may be indifferent to any abuse is irrelevant to whether the offence is racially aggravated.

It is also irrelevant if the reason for the offence was unrelated to race. For example, abusing a doorman because he wouldn’t let your friend into a club in combination with racist language will be sufficient.

How does it affect sentencing?

Each offence in law has a maximum sentence attached to it.  For offences that are racially aggravated that maximum sentence is increased. For example, common assault carries six months imprisonment but the racially aggravated offence increases the maximum sentence to 2 years.  For assault occasioning actual bodily harm the maximum sentence increases from 5 to 7 years.

The starting point is to consider the sentence that would have been imposed for the offence if it was not racially aggravated after consideration of all the other aggravating or mitigating factors in the case.

The sentence will then be increased to take account of the racial aggravation.

The extent of the increase in sentence will depend on the level of aggravation. The court will consider whether the offence was:

  • planned
  • part of a pattern of offending
  • deliberately set up to be humiliating to the victim
  • committed in the victim’s home
  • repeated or prolonged

Account will also be taken of any distress caused to other persons or the wider community and whether the offender was a member of a group that promotes hostility.

Does it have to be charged as being racially aggravated?

 Even if the offence isn’t specifically charged as being racially aggravated the circumstances can be treated as an aggravating feature in sentencing (O’Leary [2015] EWCA Crim 1306).

How can a criminal law specialist help?

As you can see such offending is treated seriously by the courts so it will be important that you seek early advice from a criminal law solicitor.

As a result, if you are arrested or know that the police wish to speak to you about an 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.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

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Rogue Landlord Banning Orders – new provisions from April 2018

The government has recently announced that it intends to bring into force a number of provisions contained within the Housing and Planning Act 2016 including banning orders.

From 6 April 2018 the Act will allow local authorities to apply for a banning order where a landlord has been convicted of a ‘banning order offence.’

What is a banning order?

A banning order will ban a person from:

  • letting housing in England,
  • engaging in English letting agency work,
  • engaging in English property management work, or
  • doing two or more of those things.

The banning orders will operate whether a landlord acts on their own behalf or via a corporate body.

What offences might prompt an application for a banning order?

The following offences are capable of triggering an application for a banning order as they are banning order offences:

Any offence involving:

  • fraud
  • the production, possession or supply of illegal drugs
  • violent and sexual offences

will be appropriate banning order offences subject to there being a link between the property being rented out and/or the tenant/household.

The offences below (subject to there being a link between the property being rented out and/or the tenant/household) are also on the list of banning order offences:

  • An offence under sections 327-329 Proceeds of Crime Act 2002.
  • An offence under sections 2 or 2A Protection from Harassment Act 1997.
  • An offence under sections 30 or 48 Anti-social behaviour, crime and Policing Act 2014.
  • An offence under sections 7, 9, 21 or 22 Theft Act 1968.
  • An offence under sections 1(1) or 2 Criminal Damage Act 1971.
  • Illegally evicting or harassing a residential occupier in contravention of the Protection from Eviction Act 1977 or the Criminal Law Act 1977.

Offences under the Housing Act 2004 that will trigger banning orders

Unsurprisingly, any of the following offences under the Housing Act 2004 are also relevant offences for banning orders:

Failure to comply with an Improvement Notice

Offences in relation to licensing of Houses in Multiple Occupation (HMOs);

Offences in relation to licensing of houses under Part 3 of the Act;

Allowing a HMO that is not subject to licensing to become overcrowded;

Providing false or misleading information.

Failure to comply with management regulations in respect of HMOs;

An offence under the Health and Safety at Work etc. Act 1974 where a person contravenes section 36 of the Gas Safety (Installation and Use) Regulations 1998;

Failure to comply with a Prohibition or Emergency Prohibition Order under sections 20, 21 and 43 of the Housing Act 2004;

An offence under section 32 of the Regulatory Reform (Fire Safety) Order 2005.

Can a landlord argue against the making of a banning order?

Yes, you can make representations both to the local authority before the making of the application and to a tribunal if proceedings are commenced.

There are the following protections for landlords facing applications for banning orders:

Before applying for a banning order the authority must give the person a notice of intended proceedings.  This notice will inform the landlord that the authority is proposing to apply for a banning order and explain why.

The notice will also stating the length of each proposed ban, and invite the person to make representations within a period specified in the notice of not less than 28 days.

Once the notice has been issued, there are the following obligations:

  • The authority must consider any representations made during the notice period.
  • The authority must wait until the notice period has ended before applying for a banning order.

A notice of intended proceedings may not be given after the end of a period of 6 months.  This period begins with the day on which the person was convicted of the offence to which the notice relates.

What happens if a landlord breaches the banning order?

Breach of a banning order is a criminal offence.  It carries up to six months imprisonment and an unlimited fine. It is also highly likely that confiscation proceedings under the Proceeds of Crime Act 2002 will follow to recover income derived in breach of  banning orders.

How we can help you as a landlord

This type of law illustrates perfectly the often-hidden consequences of a criminal conviction.  To represent people properly, it is not enough that a solicitor understands only the main offence.  Any solicitor you choose will need a wider appreciation of the effects on a defendant.  Once these are understood, they will be fully considered during the planning of your defence.  As a result, it may not be the solicitor who handles a landlord’s property matters who is best placed to handle a criminal investigation.

Our highly experienced team can assist you in navigating the initial criminal proceedings that can give rise to the banning order application.  We also understand confiscation proceedings and skilled in the practice of negotiation with public bodies.

As a result, we will help you work towards the most favourable resolution in your case.

Contact crime and regulatory solicitor Martin Hadley

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crime and regulatory solicitor Martin Hadley

Contact crime and regulatory solicitor Martin Hadley on 0115 9599550.  Alternatively you can use the contact form below.  You will then be able to discuss any allegations of criminal conduct arising out of your business as a landlord.

We will be able to provide you with free and independent legal advice if you are interviewed by the police, whether as a volunteer or under arrest.  This is because be have a contract with the government to provide criminal legal aid.

Martin will discuss with you your options for funding any interview with the local authority or court proceedings.

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News

Successful Crown Court Appeal of a Magistrates’ Court Conviction

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Senior Crown Court litigator Sarah Lees-Collier

Senior Crown Court litigator Sara Lees-Collier and solicitor-advocate Jon Hullis were recently instructed in a Crown Court appeal against conviction by the Magistrates’ Court.

Our client had been convicted after trial before the Magistrates of resisting a police officer in the execution of their duty.  Although she had only received a fine, this in combination with the prosecution costs meant that she had a substantial bill to pay at the conclusion of her case.

She was aggrieved with the outcome of the Magistrates’ Court trial.  She maintained that she was neither violent towards officers or attempted to resist arrest.  At the conclusion of the incident she had a broken arm.

The prosecution case

Police officers had attended an address to locate an offender.  Upon finding our client they discovered that she was subject to a warrant from the Magistrates’ Court for her immediate arrest in relation to road traffic offences.  Our client had already made arrangements with another police officer to surrender to that warrant.

When the police entered the property she was asleep in bed.  She had been drinking, and accepted that she was tired an annoyed by what was an unnecessary arrest bearing in mind her earlier conversation with the police.

The police maintained that she became abusive and then aggressive when the police attempted to arrest her.   It was alleged that she attempted to bite a female officer and then tried to resist arrest.  The police maintained that during their struggle to arrest her she had fallen off the bed and broken her arm.

Fault was said to lie with our client rather than the officers.

The reason for the Crown Court appeal

Our client’s version of events was very different.  She maintained that she had been handcuffed to one wrist while still on the bed.  A male officer had then taken old of the handcuffs while she was on t the bed.  He twisted her arm behind her back and pulled her off the bed with force.

As a result she fell to the floor breaking her arm.  The injury was extremely serious.  Her  arm was broken in three places.  She had to have an operation and metal plates were placed in her arm. At the time of her appeal she still had no feelings in her upper arm. Nerve damage had resulted and she remained on morphine and other medication.

The officer said to have caused the injury had been dismissed from the police for gross misconduct in relation to a separate incident.  He had given false statements in other cases. Despite that the prosecution still wanted to proceed with the appeal, but did not want to rely upon that officer at any appeal.

An automatic right to appeal

Our client’s automatic right to appeal the conviction from the Magistrates’ Court to the Crown Court provided us with an opportunity to review whether additional evidence ought to be before the Crown Court on appeal.

At Jon’s suggestion, Sarah obtained a medical expert who prepared a report after liaison with our client’s treating consultant.  The report confirmed that the injury could not have been caused by a fall or slip off the bed.  There would have had to have been a twisting of her arm, consistent with her account, to cause the injury.  This increased the likelihood of her success with her Crown Court appeal.

Prosecution abandoned its opposition to the appeal

The report was served upon the Crown Prosecution Service who sensibly indicated that they would no longer be contesting the appeal.  The matter was listed before the Crown Court and the Magistrates’ Court conviction was overturned.

Contact us about your Crown Court Appeal

While there are always risks in pursuing a Crown Court appeal of a Magistrates’ Court conviction in terms of sentence and costs you will always want to seek our advice quickly.

The time limit for submitting any appeal is very short.  Legal Aid might be available, as it was in this case.

You can read more about how we will advise you in relation to any appeal here.

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