Tag Archives: court

News

Can I challenge a search warrant?

From an era before a search warrant, in Entick v Carrington (1765), a case concerning the entry to and searching of premises, the court ruled:

“…if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.”

search warrantEntick v Carrington is probably the earliest case law concerning the law of search and seizure.  It is a legal power since described as a ‘nuclear option’ in the court’s arsenal in the case of R (Mercury Tax Group) v HMRC [2008] EWHC 2721.  But, of course, it is certainly not the last word.  Over the last few years, there has been a substantial body of developing case law designed to ensure that this most potent state intrusion into the lives of individuals and business is exercised lawfully and proportionately.

Why does it matter?

First and foremost, core constitutional principles are at stake.

These include the power of the state to enter private property.  Very often this is done during a dawn raid and with other family members present.  As a result the powers should not be used lightly, particularly during what is normally the very early stages of a criminal investigation.

Because of this, the case of R (Mills) v Sussex Police and Southwark Crown Court [2014] EWHC 2523 (Admin) held that warrants should only be sought as a “last resort and should not be employed where other less draconian powers can achieve the relevant objective”.

The taking of documents, files, computer servers and systems can have a profound reputational impact on businesses when staff see what is happening.  They and clients lose confidence in the business. The inability to carry out ‘business as normal’ can put the survival of any business at risk and can place an unbearable burden on the individuals involved.

Can I challenge a search warrant?

The powers of search and seizure under a search warrant are spread out over a great many legislative provisions.  The key message is to take our legal advice as soon as you are aware that anything might happen or has already happened.

What is clear is that warrants are very often granted on an erroneous basis.  The applications show scant regard for the legal principles involved in the issue of the search warrant.

Drawing a warrant too widely is a frequent issue as is demonstrated in the case of R (F, J and K) v Blackfriars Crown Court and Commissioner of Police of the Metropolis [2014] EWHC 1541 (Admin).

search warrantWhile warrants are issued via a judicial process, the Judge will only be able to rely on what is disclosed by the investigator in private.

Police officers are duty bound to provide the court with full and frank disclosure, highlighting any material which is potentially adverse to the application. This includes a duty not to mislead the judge in any material way. The judge must then apply a rigorous critical analysis to the application so that they can be satisfied that the evidence provided justifies the grant of the warrant and give reasons for their decision.

In Redknapp v Commissioner of Police of the Metropolis [2008] EWHC 1177 (Admin) the court ruled:

“The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person’s home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate or Judge in the case of an application under s.9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted.”

There are various avenues of legal redress available, including judicial review. Early intervention may result in the return of documents and property, and in some instances, a claim for damages might be possible.

How we can assist

Please contact us if you know that your premises are about to be searched or have been.  Keep any paperwork that you are given.  We will be able to give you expert legal advice on the legality of the search including the issue of the search warrant.

You can find your most convenient office here.

Alternatively please use the contact form below.

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News

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

landlord banning orders
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

Disclosing private sexual images or ‘revenge porn’

“Revenge porn”, more formally known as the offence of disclosing private sexual images, is the criminal act of posting online intimate sexual pictures/video of a person without their consent.

It carries a potential prison sentence of up to 2 years.  We await the outcome of the consultation into a sentencing guideline for this offence.

Revenge porn used to cause maximum distress

In the meantime, however, it is clear that the most serious type of revenge porn will be conduct that is intended to maximise distress.  This might be where images are sent to  victim’s family who are very religious, or to a victim’s young siblings.  Offending that involves setting up fake internet profiles purporting to be the victim and inviting abuse or sexualised contact from strangers will also be treated very seriously.

At the other end of the sentencing range will be impulsive posting of revenge porn or where the offending is by those affected by a mental disorder or learning disability.

Aside from the manner of the offending, a court will also consider level of harm caused in any particular case.  Where very serious distress has been caused, or a victim is particularly vulnerable, or there had been a very real practical impact on a victim then these factors will all increase the seriousness of the offence and therefore the sentence.

Such cases will include instances of images being posted a victim’s business website, or circulated to business contacts.

Case Study

The offender and the victim had briefly been in a relationship which ended acrimoniously. He sent the victim an email which contained a naked picture of her and said he would post it on social media to
‘teach her a lesson’.

She discovered that he had created a false account in her name and used the naked photograph as the profile picture. He had also posted three other intimate photographs of her. The false account had been used to contact 12 of the victim’s friends. She contacted the social media company and they agreed to close the account but this took two days.

A few weeks later B set up another false account in the same way and then he used a different social media platform to send the photograph to some of the victim’s work colleagues.  The victim and her friends contacted the social media companies and eventually had the photographs removed. In total the naked picture of her was live on social media sites for 18 days.

The victim reported that the incidents had left her feeling extremely embarrassed and anxious.

The offender made admissions in police interview and pleaded guilty at the first opportunity.   On the proposed guideline he could expect a sentence of 20 weeks immediate imprisonment.

 

Another reason to think twice about revenge porn

If the prospect of a prison sentence is insufficient deterrent, a recent case shows that there is another good reason to think twice before exacting this type of revenge on a former lover.

Celebrity vlogger Chrissy Chambers took the matter one step further in launching an action in the High Court designed to secure no further infringement of her rights as well as substantial financial damages.

Her ex-partner allowed six sexual videos to be uploaded to the adult site redtube.com.  Ms Chambers was identified by name in three of those videos.  The videos were filmed in her home, but without her consent, and showed sexual activity between her and her then partner.

She argued in court that this conduct had caused her ‘serious distress’ resulting in post-traumatic distress disorder.

In the 19 months that the videos were online a large number of people had viewed them, including some people who wrote to her expressing their displeasure at the belief that she was ‘intentionally involved in pornography’.  These viewers were affected to such a degree that they did not wish to continue watching her YouTube channel.

High Court Financial Settlement

In a settlement agreed by the High Court on 18th January 2018, her partner accepted that the posting of the videos was in breach of confidence, misuse of private information and a breach of her Article 8 rights (the right to privacy).  To provide future protection, copyright in the videos was transferred to her.

While this is not the first action of its kind (singer Tulisa Contostavlos brought a similar case in 2012), it is notable that Ms Chambers has actively sought publicity about this case, when she could have chosen anonymity.

The legal action was funded by way of a crowd-funding campaign, itself designed to raise public awareness of this issue.

By doing so, she has put this issue into the public domain, and it may well act as a deterrent to those thinking of doing something similar in future.  It is also a reminder to victims that there could be an easy route to substantial damages, provided of course that the person committing this unlawful act has the means to pay them.

Contact us for specialist legal advice about disclosing private sexual images

It may be that you acted without thinking, or it may be that you are not responsible for the offending.  Either way, we will be able to provide you with advice and representation whether your case is a guilty plea or will be prepared for trial.

Please contact one of our experts in criminal law at your nearest office.  Alternatively you can use the contact form below.

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News

How to Discharge a Restraining Order

A great many people are subject to restraining orders made under the Protection From Harassment Act 1997.  The orders are designed to protect people from harassment and are commonly made in so-called ‘domestic violence’ cases.  Advice is not given by the court at the time about how to discharge a restraining order.

Of course, life moves on.  It is quite common for old relationships to become re-established. If this should happen before a successful application is made to discharge a restraining order, the person subject to the order is at serious risk of committing a criminal offence.  The offence of breaching a restraining order carries a maximum sentence of 5 years imprisonment.

In other cases a restraining order may have, for example, geographic restrictions that are no longer appropriate.

Whatever the reason, there is a procedure to vary or discharge the order.

Is legal aid available to discharge a restraining order?

Legal aid may be available to a person subject to the order, dependant on a full assessment.

We also offer a competitively priced private client service.

Who makes the application to discharge the order?

The Act says that:

‘The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.’

This is important as it allows the person who is protected by the order to support or even initiate, any application to vary or discharge.

What are the criteria for discharge of the order?

There aren’t any statutory criteria for the court to apply, but case law sets out the following approach:

‘The only question on an application or further application, under section 5(4) of the Protection from Harassment Act 1997, to discharge [or vary] a restraining order made under that section, was whether something had changed so that the continuance of the order was neither necessary nor appropriate.’

It follows therefore that there really must be a compelling case to persuade the court to change its mind based on a change in circumstances.

Where the person protected by the order supports the discharge, the application is much stronger.  In this context the Court of Appeal has observed:

‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with.  Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.  It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself.  The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make. Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained.  She told them unambiguously that she wants this order revoked.’

How we can assist with your application

Firstly we will take your instructions and advise you as to the chances of a successful variation of discharge of your restraining order.

If the application is to be made, we will meticulously prepare an evidence bundle and submissions for the court and present these on your behalf.

If we represented you in the original hearing then we will already have the information relating to your case.  If another firm of solicitors dealt with your case then we will be able to contact them to seek the papers relating to that case.

Please contact the office most convenient to you.  Alternatively you can use the contact form below.

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News

Remorse, regret and credit for your guilty plea

In matters being investigated by the police or before the criminal courts it is sometimes the case that a simple act of contrition, genuinely felt and communicated, can alter a case outcome significantly.

For example, a timely admission and expression of sorrow can make the difference between a formal resolution, such as caution or charge or persuade the police to consider an out of court community resolution.

Credit for your guilty plea will attract the automatic discount on sentence, but it is a demonstration of genuine regret and remorse that may make all the difference.

Remorse might open the door to restorative justice

Restorative justice is now a popular out of court disposal.  Such a resolution is preferable to almost all other outcomes when guilt is not in doubt. Research shows that the process can benefit both the victim and the offender.

Other out of court disposals such as driver awareness courses can also have an impact on an offender.  This will particularly be the case where a defendant is willing to address their behaviour.  Few participants will leave the course undisturbed by the graphic images of a child hit by a speeding vehicle.

In court, it can sway a bench in some cases to impose a more lenient punishment, so because of this we always work with clients to ensure mitigation is advanced adequately at all stages.

Of course, sorry in itself might not mean much, what are you sorry for?  Is it for being caught?  Or is it because you find yourself before a court?  Could it be more than that and therefore does it amount to genuine remorse?

Genuine remorse and sentencing guidelines

This is an important question in sentencing terms because ‘genuine remorse’ is a mitigating factor in almost all sentencing guidelines and can make a substantial difference to the outcome.

The Oxford English Dictionary defines remorse as being:

‘A feeling of compunction, or of deep regret and repentance for a sin or wrong committed.’

A court will, however, be looking only for genuine remorse, and it is far from being a scientific exercise.

What does the Sentencing Council have to say?

The Sentencing Council commented on this as follows:

“This factor appears in all Sentencing Council guidelines and is one that sentencers are adept at assessing. Sentencers sitting in court on a daily basis are alive to the ease with which ‘sorry’ can be said but not meant. Evidence obtained during the course of interviews with judges (during the consultation process) confirmed the way in which judges carry out this assessment; often the judges used phrases in conversation with us such as ‘genuinely remorseful’, ‘genuine remorse’ and ‘true remorse’. This confirms the Council’s view that the consideration of remorse is nuanced, and that all the circumstances of the case will be considered by the sentencing in deciding whether any expressed remorse is in fact genuine.”

Not just credit for your guilty plea

In a recent lecture, a High Court Judge offered up these examples to illustrate genuine remorse:

• Deliberate withdrawal from an on-going criminal enterprise.

• Removing oneself from criminal associates or the sources of temptation.

• Behaviour immediately after the offence such as obtaining medical aid.

• Voluntary surrender and confession to the police.

• Efforts to reform by way of, e.g. drug-rehabilitation or alcohol withdrawal programmes.

• Return to education.

• Assistance to the authorities in combating crime.

• Voluntary restitution, payment of compensation without order from the court or restoring damaged property.

Less objective examples (but commonly seen) include:

• Expressions of remorse in police interviews after arrest.

• The impression of genuine remorse given to a probation officer, psychiatrist or psychologist when being interviewed for the purpose of preparing a report for the court before sentencing.

• Letters of apology written by offenders to victims or the court

How can we assist? Contact a criminal defence lawyer now.

It is our job when representing clients to ensure that the best case is put forward.  You will want this to go beyond the usual mitigation offered by the credit for your guilty plea.  This should involve other aspects of your character that might shine a light on your true self.

People make mistakes, sometimes serious ones, but rarely does that alone define the real person.  We believe that carefully presented mitigation makes a real difference to the outcome of criminal cases.

We are experienced in approaching family, friends, employers and other community figures for reference letters on your behalf.  The information that we request will make sure we build on the credit for your guilty plea because of this experience.

credit for your guilty plea
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Please contact your nearest office here or alternatively use the contact form below.

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News

Criminal Legal Aid Solicitor Secures Discontinuance for Vulnerable Client

Nottingham criminal legal aid solicitor Martin Hadley was instructed in a case alleging assault upon two staff members at a local hospital. Eventually the prosecution was persuaded that it was not in the public interest to continue with the prosecution.  It was no doubt a shame that this sensible review did not take place sooner, bearing in mind the vulnerabilities of his client.

Police interview at home without a solicitor

Martin’s client had been interviewed by the police regarding these assaults.  The interview was undertaken at the client’s home address and without the benefit of legal advice.  Although such an interview technique might create the impression that the police are not taking the matter particularly seriously, the evidence gathered through interview carries just as much weight if gained at a police station in a formal interview.

Second legal aid solicitor instructed

This firm was first instructed by our client after another firm of solicitors had failed to secure free criminal legal aid for her.  This resulted in an earlier trial being adjourned because the steps necessary in her defence had not been taken.

Martin took the time to speak with our client’s carer.  He obtained instructions as to our client’s income and this allowed an application for legal aid.  This was granted without difficulties.  Unfortunately, owing to her health difficulties our client was unable to provide us with clear instructions regarding the criminal charges.

Eventually Martin received the papers relating to her case from the former solicitors.  He read the papers and discovered that the allegations involved assaults on two nurses at the hospital.  For understandable reasons, where a person is convicted, the courts will always take such matters seriously.

Argument that our client was acting lawfully

The nurses would give evidence that a doctor from the Mental Health Unit had asked for the client to be detained so that staff at the relevant ward could undertake a full mental health assessment. The nurses who were dealing with our client at the time did not have training on how to deal with patients with mental health difficulties.

Our client decided to leave the hospital.   The staff attempted to restrain her and at that time she was said to have assaulted the nurses.

Upon a review of the file Martin decided to approach the case from two angles to try and secure the best result for his client.  Firstly, he pointed out to the prosecution in correspondence that there was currently no evidence that the nurses had a power to detain his client under the Mental Health Act.  Without such authority then it could be argued that his client was free to leave the hospital.  This meant that any attempts to detain her would have amounted to unlawful force and so our client would be entitled to resist.  This would mean that the alleged assaults were not unlawful.

Despite various requests by the prosecution, the hospital was never to release a copy of the order or the relevant notes relating to the incident. Delays in the trial being heard because of this.

How could it be in the public interest to proceed?

The issue of lawful authority being pursued so Martin’s second aim was to try and persuade the CPS to discontinue the proceedings.  He argued that it would not be “in the interests of justice” to continue with the proceedings because of the circumstances.

The client was clearly suffering from an illness that required treatment at the time of the allegations.  She had no recollection of the incident due to what was believed to have been a psychotic attack. This contention was backed up by the fact that the client was subsequently detained under the Mental Health Act following the incident.

Martin made lengthy representations to the prosecution because of these health issues.  The health problems were continuing, and a further period of detention had followed under the Mental Health Act.  Specific guidance from the prosecution and the National Health Service suggested individuals should not be prosecuted because of their illness.

Late decision by prosecution means that case dropped on day of trial

Despite this clear guidance and irrefutable medical evidence the prosecution would not make a final decision as to withdrawing the case.   Fortunately, the prosecution discontinued the case on the day of the trial, although numerous attempts had been made to secure that outcome prior to the trial date.

Criminal Legal Aid in the Magistrates’ Court

criminal legal aid solicitor VHS Fletchers NottinghamWe know how important it is to secure affordable representation if you face proceedings in the Magistrates’ Court.  There is both a merits test and a means test but we will help you complete the forms.  This is so that you have the best chance of passing both.

Even if an initial decision is made that you have too much income, we will provide you with advice about pursuing an exceptional hardship application to try and ensure that you receive free legal aid.  This is because as a legal aid solicitor we specialise in this type of advice.

Instruct a Nottingham criminal legal aid solicitor

nottingham criminal legal aid solicitor Martin Hadley
Nottingham criminal solicitor Martin Hadley

If you wish to instruct legal aid solicitor Martin Hadley then please telephone him on 0115 9599550.  Alternatively, you can contact him using the form below.

One of our other offices might be more convenient to you.  You can find out where they are here.

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