Tag Archives: crime

News

Criminal solicitors providing emergency legal advice over the festive period

As businesses prepare for Christmas, it is customary to inform clients of seasonal opening hours. For many, it will simply be a case of announcing the days on which the business will be closed, but for us, as criminal defence solicitors, the position is a little more complicated than that owing to the need for emergency legal advice.

We close our offices, but of course we don’t close down our emergency services.

Our offices across the East Midlands will be closed on the following dates:

24 December 2019

25 December 2019

26 December 2019

27 December 2018

31 December 2019

1 January 2020

Emergency legal advice

However, if you need emergency legal advice in relation to a criminal law related issued, at any time of the day or night, we have a team of people to assist.

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

For example, the Nottingham number is 0115 9599550.  You will be able to speak to one of our on call solicitors.

 

The work of a criminal lawyer does not lend itself to regular working hours, nor is there any time, day or night when we are not available. We offer a level of accessibility that few other professionals can match, and we are immensely proud of that fact.

When arrested on Christmas Day, as some people inevitably will be, we will be there by their side to offer timely legal advice to protect their interests.

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

Even the criminal courts are open for business during at least part of the festive period, allowing for bail applications and other urgent court business.  Again we will provide representation at those hearings.

And of course, those in prison can experience particular difficulties as they are reminded of families far away, also impacted by the trauma of custody.

We take this opportunity to wish all of you a peaceful and restful holiday season, but if for any reason you need us, we will be there at the end of the phone and in person.

News

The end of the ‘simple adjournment’?

In criminal practice and procedure, you might think that the humble adjournment is a relatively simple and straightforward matter, but you would be wrong.

A little like buses, they are never available when you want one.  However, when you don’t want a case delayed the court always appears happy to work against you.

In reality, the humble adjournment is now a complex process, and only a mastery of the relevant principles will ensure the best outcome for your case.

The wise advocate is armed with a detailed chronology and will be ready to deploy this information without notice on an unsuspecting opponent. All relevant facts will have been gathered and a detailed submission will ensure the best prospects of success.

On occasion, it will be down to a client to assist. If for example, you cannot attend court due to illness or another unexpected matter arising, your solicitors will ensure that you are aware of the detailed information that needs to be provided.

The case law in relation to adjournments is well known, or at least ought to be. In Crown Prosecution Service v Picton, the High Court detailed the factors that a court ought to focus on:

  • A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.
  • Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.
  • Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.
  • Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.
  • In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.
  • The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise, if the party opposing the adjournment has been at fault, that will favour an adjournment.
  • The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why.
  • Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court’s duty is to do justice between the parties in the circumstances as they have arisen.

What could possibly go wrong with a simple adjournment?

In a recent case of Pari-Jones v Crown Prosecution Service the following facts emerged:

‘On the morning of the trial, the legal adviser to the Magistrates’ Court received two emails from the defence solicitor, which were written in Welsh and were translated and presented to the court. The first email was sent at 9.23am. The solicitor stated that he was acting for the defendant and that she was a lady approaching 80 years old. It was the first listing for trial, and the criminal damage related to a neighbour dispute.

The magistrates were told that the defendant was very concerned regarding the weather, because it was freezing around her house and the road, and she had no electricity. She was living by herself with no close family. The solicitor further wrote that he was stuck in his home, which was in Pwllheli, and that it was freezing hard. He said he was a distance away from the main road, which had been gritted, and although he could leave his house, he was not feeling comfortable in venturing out.’

Almost unbelievably the court refused the defence adjournment and the defendant was convicted in her absence. The magistrates’ admitted to having considered no case law at all!

The full judgement in this case can be found here.

So, what seems to be an unanswerable request for a simple adjournment, in the wrong hands, can go terribly wrong. That is why we train all of our advocates to never take an application for granted and ensure the best advocacy is always deployed on your behalf.

How we can assist

We have a team of highly trained and dedicated solicitors. Unfortunately you’ll see from the facts of the case set out above that the Magistrates don’t always do what to the bystander should be obvious.

If you face court proceedings we can make a real difference to the outcome of your criminal case.  Legal aid may well be available to fund your defence at court.

 You can find your nearest office here.

simple adjournment
VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:

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News

Sexsomnia Defence Successful

 

Senior Crown Court Litigator Lisa Sawyer

Senior Crown Court Litigator Lisa Sawyer based at our Nottingham office, helped achieve trial success after exploring a rather obscure and developing area of defence, sexsomnia.

Her client was charged with two counts of rape and multiple sexual assaults. He denied the offences, putting forward a defence of ‘sexsomnia’ or ‘sexual behaviour in sleep’.

Expert in Sexsomnia

The case involved Lisa instructing perhaps the leading expert in the field, Dr Chris Idzikowski BSc PhD CPsychol FBPsS.  He is President of the Sleep Medicine Section of the Royal Society of Medicine and Director of the Sleep Assessment and Advisory Service.

The area of sleep research and sleep medicine that relate to sexsomnia have only evolved recently, and as a result there are no generally accepted methods to investigate whether sleep-related behaviours have lead to criminal charges.  The preparation of this case involved the client as an inpatient for two nights for a study of his sleep patterns.  The expert was then able to consider:

  • whether the client was capable of involuntary behaviour during sleep
  • to review the behaviour alleged and see whether it could have occurred whilst the person was asleep.

Research has shown that many forms of sexual behaviour can occur whilst an individual is asleep.  Generally the behaviour is simple and rarely includes more complex acts such as intercourse.  In this case the client was said to have committed a rape.

For a proper opinion to be given evidence has to be gained from a number of additional sources – usually historical, such as from a partner, previous partners, friend and relatives.  The key witnesses, however, were the client and his then partner.

Favourable conclusion

Dr Idzikowski was able to conclude that the client had a predisposition to involuntary behaviour during sleep, and that factors existing in the client’s personal life at the time may well have led to the behaviour.  The partner being present was a sufficient trigger for the behaviour, and the timing and behaviour was consistent with ‘parasomniac behaviour’, behaviour whilst asleep, or sexsomnia.

The Crown Prosecution Service attempted to counter this expert evidence with its own doctor flown in from America to give evidence.

Specialist advocacy from independent counsel

Following careful handling of the case by specialist advocate Gary Summer of 9 Bedford Row  the client was found not guilty.

The quality of representation may be of particular importance in rape cases as recent research has shown that many jurors have decided on guilt before they reach the retiring room.

Representation under the Crown Court legal aid

The client had the additional benefit of being in receipt of legal aid which meant that ultimately, because he was successful at trial, the preparation and representation was free of charge to him.  This was of particular importance as the expert fees necessary to prepare the case in his behalf were considerable.

Contact a criminal defence specialist

Sleepwalking cases are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.

As a result, 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 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.

You can read more about the issue of automatism here.

 You can find your nearest office here.

automatism
VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:

Contact

 

Continue reading Sexsomnia Defence Successful →

News

I have received a postal requisition – what should I do?

Since the change in the rules relating to police bail a postal requisition has, in many cases, replaced a formal police charge in bringing a defendant to court.

What is a postal requisition?

postal requisitionA postal requisition is a summons to court, telling a defendant what they have been charged with.  It will also contain the date and time that you must attend a particular Magistrates’ Court.

They will be used in cases where the police do not seek bail conditions.  They will be appropriate where there is no language or communication problems and there is a known fixed address for the defendant.

 

When will I receive one?

Although a postal requisition will be used in motoring offences in a similar way that a summons would have been issued, they are also used for a wide range of criminal offences including the most serious.

As a result, if you have been interviewed by the police as either a volunteer or while under arrest and been released under investigation the first thing you hear about the outcome of the investigation might be the postal requisition.

Unfortunately, the timing of the requisition will be hard to predict.  It could be received within weeks of a police interview, or months afterwards.

What happens if I don’t attend court?

If you fail to attend court in answer to the postal requisition then it is likely that a warrant without bail will be issued for your immediate arrest.  This means that the police will arrest and detain you at a police station in order to bring you before the next available sitting Magistrates’ Court.  This could be on a Saturday or Bank Holiday and you could spend many hours in custody.

Bearing in mind the possible delay in sending the requisition it is extremely important that you check your post regularly and keep the police informed of any change of address to avoid an unnecessary arrest.

postal requisition
A helpful reminder outside our Chesterfield office

If we have provided you with free and independent legal advice in your police interview then we will make regular contact with the police to ensure that you know what is happening with the investigation.  We will be able to keep the police informed on your behalf of any changes of address.  We will also be able to tell you when the investigation has been concluded and if you are likely to have to go to court.

Even if we have not advised you in interview, please feel free to contact us afterwards.  We will be able to advise you on the likelihood of further interviews, and provide the same service to you as we would to those who we represented in interview.

What should I do if I receive a postal requisition?

Hopefully you will have already taken advantage of our free and independent legal advice at the police station so in those circumstances simply contact the lawyer at this firm who dealt with your case.

We will be able to provide you with advice as to the availability of criminal legal aid or discuss private funding with you.  We will also be able to make a request for the papers in your case prior to the first hearing and begin to take instructions and advise you as to plea.

postal requisition
VHS Fletchers offices across the East Midlands

This will ensure that you have representation at this all important first hearing and will have investigated any defence that you might wish to put forward.

If you did not have representation in interview or this was from a different solicitor, then we will still be more than happy to receive your instructions in your case.  Please contact your nearest office when you receive the postal requisition.

Alternatively you can use the contact form below:

Contact

News

Considering becoming a legal aid lawyer? Here is a typical week

legal aid lawyer
Chesterfield partner and crime solicitor David Gittins

Where possible, VHS Fletchers is a solicitors’ firm committed to encouraging those interested in joining the legal profession.  We welcome law students who are keen to find out what it is really like to be a criminal defence solicitor and legal aid lawyer.

Work placements can be hard to come by, but if you are local to one of our East Midlands offices then please contact us to see if we have space at one of them at a mutually convenient time.

VHS Fletchers are also keen to encourage those interested in joining the legal profession and welcome law students keen to find out what it is really like to be a Criminal Defence Solicitor. Work placements can be hard to come by so for those unable to secure a placement below is a description of Chesterfield partner and Crime Solicitor David Gittins typical week.

Monday

David was in the office early meeting Natalie the work placement student to show her the sort of work undertaken by a legal aid lawyer.  They then walked over to Chesterfield Magistrates’ Court to represent a client who in the end failed to attend.

As a result, there was a lengthy wait before a warrant was issued, but David was able to use the time preparing for a later appointment to take instructions in relation to an upcoming trial.

It appears that the tone had been set for the day, and that client failed to keep his appointment.

David also undertook some preparation for his second appointment of the day.  This again related to a forthcoming trial at Chesterfield Magistrates’ Court.

This was a particularly important appointment as the trial was listed before the court for a prosecution application to let the Magistrates’ know about his client’s previous convictions.  David had hoped to discuss the convictions in detail to help him know how best to argue against the application.

This final client of the day also failed to attend his appointment.

Tuesday (day)

David was at Chesterfield Magistrates Court again on Tuesday.  This time he was acting as court duty solicitor.  This means that he would act as a legal aid lawyer for those defendants who hadn’t instructed a specific solicitor to act for them.

When David attended court he would not know the type of cases that he would be dealing with.  In the end he represented two clients who had attended on bail and one in the cells.

He returned to court in the afternoon to complete all of the cases,  including the representation of one defendant who had pleaded guilty to drink driving.

In between cases, David was able to discuss a case for the following day that needed the input of a consultant psychiatrist due to his client having difficulties with his mental health.

At the end of the normal working day, David saw a new client at the office who had been recommended to him.  He was able to take instructions and submit a legal aid application online.

Tuesday (night)

That night David was on call as one of the lawyers staffing the firm’s out of hours police station rota to provide emergency advice and assistance to those being interviewed under caution by the police.

Although it would no doubt be preferable to interview suspects during normal working hours, the police often think it appropriate to interview at any hour of the night.

Although legal aid lawyer David only represented a single suspect during this period he travelled to Chesterfield police station at 8.45pm to represent his client who was accused of assault.

Free advice was provided and the client was released under investigation whilst the Police continued to investigate the offence.

David returned home shortly before 1 am but had to be back at his desk the following morning to complete that day’s work.

legal aid lawyer
Chesterfield police station

Wednesday (day)

David returned to Court on Wednesday morning to successfully resist the bad character application being made by the prosecution.

He also represented the client with mental health difficulties in their absence as they were not well enough to attend court.  The case was adjourned to a future date.

On returning to the office David also spoke to the client that he had represented in the police station the previous night.  Although we do not carry out family work he was able to signpost her to a family solicitor who could help with the issues arising following her arrest and release.

David returned to Chesterfield Magistrates’ Court for the afternoon session.  He represented a client who was to be sentenced for a theft allegation.  Unfortunately, due to the delays at court, this case was not called on until 4.30pm despite a bail time of 1.45pm.

Wednesday (night)

David was again involved with our out of hours rota.  He was the coordinator for the scheme, which meant that he took the emergency calls from the Duty Solicitor Call Centre, police and clients or their families resulting from arrests.

Whilst David can complete this task from home with the use of his mobile phone, calls continue throughout the night.  David deployed his colleagues to the police station at 9.30pm and a little after midnight.

A spare room is always helpful when coordinating the rota.

Thursday

David, suffering from a lack of sleep, was back at Chesterfield Magistrates’ Court at 9.30am to represent a client who had previously pleaded guilty to assaulting his partner.  David successfully argued for a community order.

The rest of the day was spent by David completing work arising from cases he had dealt with that week and preparing files for future court dates.

Friday

David was again court duty solicitor at Chesterfield Magistrates’ Court.  He dealt with a client who faced an allegation of unlawful possession of a firearm.

Saturday

Magistrates’ Courts across the country also sit on a Saturday morning to deal with defendants who have been refused bail by the police.  Again we provide representation at these courts as part of our out of hours emergency rota.

David was represented two clients before Nottingham Magistrates’ Court.  The first client faced a very serious allegation of possession with intent to supply cannabis as part of an organised crime gang.  This client was remanded into custody having insufficient community ties to ensure attendance at future court dates for such a serious offence.  David was assisted by a Lithuanian interpreter in this case.

The second case was at the other end of the spectrum in terms of seriousness, although it was serious to his client.  David’s other client was simply charged with shop theft.  However, what should have been a simple matter was delayed by the police as the client was not brought through to the cells until his methadone could be located, leading to a wait of several hours.

Considering becoming a legal aid lawyer?

We are currently advertising for the post of trainee solicitor at our Chesterfield office.

There are plenty of articles on our website that show you the kind of work that you will undertake both before and after qualification.

Read more in our news section.

A legal aid lawyer will only gain the experience necessary to provide expert advice in the field of criminal law by being part of a busy practise.  We can offer that experience.

We look forward to hearing from you with either your request for work experience or application to be a trainee solicitor.

News

Offensive Weapons Bill published by the Government

offensive weapons billThe government has published an Offensive Weapons Bill.  The legislation is designed to signal a more stringent approach to the possession of weapons and liquids that can be used to cause harm, such as corrosive substances.

The Offensive Weapons Bill forms part of the government’s response to the recent rise in serious violence, set out in the £40m Serious Violence Strategy.  This places a new focus on early intervention alongside robust law enforcement.

What is proposed in the Offensive Weapons Bill?

The following provisions feature in the bill:

  • a new criminal offence of selling – both online and offline – a corrosive product to a person under the age of 18. The substances and concentration levels of what constitutes a corrosive product are set out in the Bill.
  • a new criminal offence of possessing a corrosive substance in a public place. There is a defence of possessing the corrosive substance for a good reason. There is a minimum custodial sentence in England and Wales where a person is convicted for a relevant offence a second time. The offence will carry a maximum sentence of 4 years imprisonment.
  • where a corrosive product or bladed product is sold online, the defence of having taken reasonable precautions can only be relied on where the seller meets certain conditions in terms of age verification and packaging and delivery of the items
  • new criminal offences prohibiting the dispatch of bladed products and corrosive products sold online to a residential address. The offence for bladed products is limited to those that can cause severe injury and includes defences for made to order items and those for sporting and re-enactment purposes. The offence will carry a maximum sentence of 6 months imprisonment.
  • new criminal offences in relation to delivery companies delivering a bladed article or a corrosive product on behalf of a seller outside the United Kingdom to a person under 18
  • updating the definition of a flick knife and prohibition on the possession of flick knives and gravity knives (their sale etc. is already prohibited)
  • amending existing law to make it a criminal offence to possess certain weapons (such as knuckledusters and death stars) – the sale and importation of these is already prohibited. It provides for compensation of owners
  • extending the existing offences of possessing a bladed article or offensive weapon on school premises to cover further education premises in England and Wales and Northern Ireland
  • amending the legal test for threatening with an offensive weapon in England and Wales
  • prohibiting high energy and rapid firing rifles and a device known as a “bump stock” which increases the rate of fire of rifles. Existing owners will be compensated.

 

How we can help

Although the contents of the Offensive Weapons Bill are yet to be made law, in recent months the rhetoric around knife-crime has been ramped up by politicians seeking to respond to public concern about knife-crime.

Judges hear this and often react by imposing increasingly long prison sentences.  These concerns have been reflected in the new guideline relating to sentencing those convicted of possessing offensive weapons.

It is our role to ensure that firstly our clients only enter guilty pleas when such a plea is appropriate.  We will begin to prepare your defence from the very beginning of the investigation, so take advantage of our free and independent legal advice in police interview.

If you are to be sentenced for an allegation involving a weapon or a blade then we will make sure that relevant factors from the background to the offending is properly advanced in mitigation.  The lives of young people in particular may be complex and some of the factors contributing to offending may be hidden.

It is our job to ensure that the full picture is presented to the court.

We provide nationwide advice and representation in criminal cases from our offices across the East Midlands.  You can find your nearest office here.

offensive weapons bill

Alternatively you can use the contact form below:

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News

Justice Committee Report on Criminal Legal Aid

A recent report from the House of Commons Justice Committee entitled “Criminal Legal Aid” has made the following observations and recommendations after hearing evidence across a wide range of issues.  The conclusions are below.

justice committee criminal legal aid

Recent changes to the LGFS

  1. The evidence we have received suggests that solicitors have serious grievances about the Litigators’ Graduated Fee Scheme, given the absence of index linking for two decades, the 8.75% cut in fees imposed in 2014, and the recent reduction to the cap on pages of prosecution evidence.
  2. The Law Society’s judicial review of the Government’s decision to revise the LGFS means that it would not be appropriate for us to offer comment on the details of the scheme at this point in time. However, we have received evidence indicating a worryingly high level of demoralisation among criminal defence solicitors and threats to the economic sustainability of criminal defence firms, with negative implications for the criminal justice system—especially for defendants. We return to this issue below.
  3. We consider it regrettable that the Law Society has had to resort to bringing a judicial review to pursue its grievances about the LGFS. We recommend that the Ministry of Justice take urgent steps to avoid this dispute having to be resolved by the courts. Whatever the outcome of the judicial review, we consider there should be a wider review of criminal legal aid.

Recent changes to the AGFs

  1. We consider it regrettable that the Criminal Bar felt compelled to take direct action in response to the new Advocates’ Graduated Fee Scheme, given the potential for adverse impact on defendants and complainants, as well as on the functioning of the courts. However, the underlying reasons for the dispute can be understood, including the failure to ensure that fees keep pace with inflation, the staged fee reductions from April 2010 onwards, unhappiness about aspects of the revised AGFS and the Criminal Bar’s genuine and heartfelt concerns about the future of their profession and under-funding of the criminal justice system.
  2. While we welcome the Government’s decision to offer additional funding for the AGFS and the Criminal Bar’s decision to accept the offer, we do not believe that ending this specific dispute has resolved the underlying issues and it is clear that many barristers remain deeply unhappy about their situation and about the future of the criminal justice system.
  3. We acknowledge the challenges facing the Ministry of Justice in reworking the AGFS so that it is fair to advocates at all levels of seniority, and in ensuring that it is future-proofed against inevitable changes in the profile of Crown Court cases. We also recognise that the Ministry of Justice has made genuine efforts to address the concerns of the Criminal Bar. To provide for ongoing collaboration with the legal profession on refinements to the AGFS, we recommend that, without any further delay, a system of annual review be built into the AGFS, overseen by a panel which incorporates representatives from the Criminal Bar and solicitor organisations, Criminal Legal Aid 39 alongside Government representatives. The panel’s remit should include considering the inter-dependency between the AGFS and the LGFS, and the impact of changing the former on the operation of the latter.

Expenditure on criminal legal aid

  1. As we have observed, there is a common law right to legal advice, together with a right to legal representation for an accused person under Article 6 of the European Convention on Human Rights. We conclude that there is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms placing these rights at risk; we conclude that this risk can no longer be ignored.
  2. We also conclude that current difficulties in recruitment to the Criminal Bar could potentially have a negative impact on future recruitment to, and diversity within, the judiciary—in particular for judicial office holders in the criminal courts.
  3. Given these risks, we welcome the decision of the Ministry of Justice to consider legal aid for criminal law within the LASPO post-implementation review, as a first step in understanding the crisis that criminal legal aid is facing. We recommend that the output from this workstream be used to underpin a comprehensive and independent review of criminal legal aid, with the aim of devising a scheme that is sustainable and user-focussed; the review should adopt a similar approach to that of the recent independent review in Scotland. This review should be launched no later than March 2019 and should be concluded within 12 months.

Declining expenditure on the Criminal Justice System

  1. An effective criminal justice system which successfully prosecutes those who commit crime but which also protects the innocence of the accused unless the prosecution can prove their guilt is one of the pillars on which the rule of law is built. The effectiveness of the system also demands that the fabric of the criminal courts is properly maintained. We conclude that the under-funding of the criminal justice system in England and Wales threatens its effectiveness, and in doing so undermines the rule of law and tarnishes the reputation of the justice system as a whole.
  2. Our justice system is widely admired and the UK is a jurisdiction of choice for many individuals and corporate bodies that need to resolve disputes; nonetheless, it faces competition from other jurisdictions. We conclude that the under-resourcing of the criminal justice system undermines the prospects of successfully promoting our legal system abroad, a stated objective of the Government.
  3. We recommend that that the Government conduct an urgent cross-departmental review of funding for all elements of the criminal justice system, including criminal legal aid and the Crown Prosecution Service, with the aim of restoring resources to a level that enables the system to operate effectively; the details of this review should be published in advance and its timetable must ensure completion in time to influence the conclusions of the 2019 Spending Review.

Criminal Legal Aid Disclosure of unused material

  1. We conclude that the pressure placed on defence lawyers to fulfil their professional obligations by reviewing unused prosecution material without remuneration is fundamentally unfair and—with the continual increase in the amount of such material—likely to become unsustainable, and increasingly prejudicial to the defendant. We recommend that restoring legal aid payments for reviewing unused material above a certain page threshold be considered as part of the comprehensive and independent review of criminal legal aid that we have recommended above.

The link to the full justice committee report can be found here.

News

Derby and District Law Society secures meeting for Chesterfield crime solicitors

chesterfield crime solicitorsOn 4 May 2018, Deputy Police and Crime Commissioner Kevin Gillott and Rosemary Spilsbury, Business and Performance Manager with the Derbyshire Criminal Justice Board, met with a group of Chesterfield crime solicitors who represent clients appearing before North Derbyshire Magistrates’ Court.

The meeting was informal in nature, arranged through Derby crime solicitor Nick Wright as the Derby and District Law Society chesterfield crime solicitorrepresentative for criminal matters.  The outcome has been shared with Legal Aid account managers and the Chair of the Derbyshire bench.

The aim of the meeting was to discuss any issues Chesterfield crime solicitors had with the processing of suspects and defendants by Derbyshire constabulary.  Some of the issues were also relevant to HMCTS and the CPS so the details were to be forwarded on.

Present were our Chesterfield crime solicitors David Gittins, Ben Strelley and Denney Lau, as well as other local practitioners.

The following matters were discussed:

Police Investigations

Police no longer appeared to be investigating both sides of a complaint during the investigation stage.  It was seldom, if ever, that they would speak with named defence witnesses.

Those interviewing suspects appeared to have a pre-conceived idea of what would be put in interview.  The series of questions were not departed from or amended dependent upon answers given by the suspect.  As a result, issues were not properly developed or interviews went on far longer than was necessary.

The need to investigate the issues raised by a suspect where relevant has been raised with the local body responsible for police training.

Bail and suspects released under investigation

The fact that bail could continue to be used did not appear to be properly considered by officers.

Instead, the overwhelming majority of suspects were simply being released under investigation (RUI).  Thereafter, there was no obvious suggestion that an investigation was being actively pursued.

Under the old bail system, Chesterfield crime solicitors at least had the opportunity to exercise some oversight in a case.  Representations could be made when suspects returned to the police station on bail, and bail milestones were set by which time there was a reasonable expectation that things might have progressed.

The police are to be encouraged to respond to emails from the defence explaining what is happening so that clients can be kept informed of progress.  The defence may be able to assist if, for example, it is discovered that a client has been subject to a postal requisition but has moved address.  The defence may be able to help save scarce police resources by making contact with a suspect if a further interview is required or with a defendant to make sure court dates are kept.

Superintendent Lewis will be contacting all police staff to ensure they are aware of the importance of updating suspects and their legal representatives.

Voluntary interviews

The number of voluntary interviews is increasing.  Unfortunately police stations lack the facilities to cope.  Voluntary interviews are not meant to take place in the cell blocks and several interview rooms are out of use.

The voluntary interview process and facilities are being reviewed. In the short term voluntary interviews will continue to take place in the cell block but longer term alternative rooms will be identified in police buildings across the force area.

Chesterfield Custody Suite

The facilities at Chesterfield custody suite are particularly poor.  Although the rooms in the cell block are also poor, they are still better than many of the rooms provided for voluntary interviews at many sites.  Although there has been some repairs and decorations at Chesterfield custody, other options may need to be considered in the long term.

Disclosure of evidence in particular cases

On practitioner cited a specific case where the alleged offender himself is vulnerable with a history of suicide attempts.  Phone records, and particularly text messages, were relevant to the case.  The case summary referred to 7,000 text messages that the police had retrieved.

The defence had requested this relevant material at the beginning of the case.  Three months later the defence was provided with a disc that could not be read without particular software and a password.  The defence had neither the software or the password.

Chesterfield crime solicitors are to be provided with the different types of format in which such information will be provided in future and where the software and other information can be obtained.

Disclosure of CCTV footage to Chesterfield crime solicitors

CCTV is not being provided to Chesterfield crime solicitors for the first hearing at the Magistrates’ Court.  It does not matter whether the case is anticipated to be a guilty or not guilty case.

There is an additional difficulty again in relation to the different formats in which it is supplied.  Some formats do not work on defence systems and again there are problems with the footage being password protected.

Again, we are to be provided with details of different formats used for different purposes and the software needed to access the CCTV footage.

Anticipated Plea

Unfortunately the police often anticipate the plea incorrectly.  This is a particular problem where a defendant has exercised their right to silence and there has been a ‘no comment’ interview.

If a case is wrongly identified as a ‘guilty’ plea then there will be no statements, exhibits or CCTV.  This generates a delay at court while this evidence is provided.  It will also mean that it is unlikely that issues raised by a suspect in interview will have been investigated.

A Criminal Justice review underway to establish how certain assumptions are made on plea, and how to improve the assessment of plea.

Respect for suspects and defendants

A plea was made that officers not refer to alleged offenders as ‘perps’ in the early summary of the case.  Rosemary has kindly fed this issue back to those responsible for training local officers and it is to be included in a Message Of  The Day to officers.

Buxton police station

There has been discussion as to whether the custody suite is to close and prisoners be processed elsewhere.  Unfortunately there is no answer, so a request was made that there is proper consultation with local defence solicitors, including Chesterfield crime solicitors, if change is to be considered.

Temporary closure of custody suites

When police close a custody suite temporarily the police have been asked that the duty solicitor covering that station be notified.  As a result of the meeting, the Chief Inspector has a request to Custody staff for this to be done.

Best evidence

It was noted that the police are filming information from the phones of witnesses or complainants rather than seizing the device upon which the messages , photographs or footage is recorded on.

This provides a problem with disclosure.  Neither the prosecution or defence are able to access the full thread of messages or the original footage so allow the full context to be shown.

Disclosure issues have been recognised nationally by both the police and the Crown Prosecution Service and there is to be increased training for both agencies. The College of Policing is producing a national training package for officers.

Reporting poor practice

The Chesterfield crime solicitors present at the meeting observed that it would be useful for defence solicitors to be able to give feedback in relation to specific issues.

If there are examples of poor work that do not need an immediate response then Rosemary passed out her email address and encouraged direct contact in order that the issues can be resolved.

Conclusion

Those present were of the view that the meeting was useful.  It was also an indicator that there could be a constructive working relationship between the police and defence practitioners in order that all parties, including suspects or defendants, will benefit from change over the long term.

It is hoped that further such meetings will be arranged for the future.

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Social media crime and how to avoid it

With the ever-growing popularity of social media websites such as Facebook, Twitter and Instagram it is important to take a step back and consider your use of them. You need to make sure that you and your children not only control the personal information that is put onto social media but also your behaviour on such sites to steer clear of social media crime.

 

Control your online information

 Be aware of the potential for cyber-enabled fraud. Fraudsters can use information obtained from such sites to commit identity theft. Telling everyone about your forthcoming holiday may also be an advance invitation to a burglar.  It is surprising how much information we reveal about ourselves over a period of time.

If you have children you also need to be aware of the dangers of persons contacting them and then grooming your child.  This involves building an emotional attachment to them with a view to a meeting for the purpose of sexual abuse or exploitation.

Many online games allow for messaging between users – do you know who your child is talking to?

Control your own behaviour

 Many offences can be committed in the heat of the moment or when in drink.  They will involve the typing of a comment that cannot then be taken back.

Trolling, or sending abusive messages online, can be an offence under the Malicious Communications Act 1988 and the Communications Act 2003.  Stiff penalties can be imposed in either case.

Revenge porn, involving publishing intimate images of an ex-partner without their consent, is now a criminal offence and often results in a prison sentence.  This article deals with this type of offending in more detail.

What may seem to be banter to you may actually be offensive.  What may be intended to be seen by a few could end up being seen by thousands of social media users.

The use of a fake social networking profile or account may also be a criminal offence in certain circumstances.

What about freedom of speech and social media crime?

 Freedom of speech is not an absolute right and may be restricted where necessary and proportionate.

 Think it couldn’t happen to you?

 You might remember the Robin Hood Airport case?  In that case a young man made what he intended to be a jokey comment about blowing up the airport if he couldn’t make his flight due to adverse weather.

He found himself in court and was convicted by magistrates.  He lost his appeal to the crown court.  His conviction was finally quashed at a second High Court appeal. By then he had already lost his job as a consequence of the conviction.

 What are the consequences?

 Social media has recently been blamed for an increase in knife crime.  It is argued that it can amplify the effect of violence. Accordingly, online offences are being dealt with seriously.

Last year the Crown Prosecution Service updated its policy statements in order to take account of the increase in online abuse,.  The change is to emphasise that individuals need to appreciate they can’t go online and use their keyboard without any consequences.

At the other end of the spectrum, saying something unpopular or unpleasant is not unlawful.  People’s sensitivities do need to be balanced with free speech, and we see reported a number of cases that cause us concern.

This tide of sensitivity could result in people pleading guilty when in fact they are not.

How can we help defend social media crime?

Social media crime will involve serious allegations and the law is complex.  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.

social media crime
VHS Fletchers solicitors East Midlands offices

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Duress (or ‘I had no choice!’)

There is a defence in law known as necessity or duress of circumstances.  It is often raised by our clients in early discussions about their case.

It can be very difficult to demonstrate.  It is only likely to apply in unusual and extreme circumstances.  It is used to describe a situation where someone is forced by the demands of the situation to act unlawfully.  In so doing, a worse situation was avoided by acting in this way. This defence is quite separate from an issue of self-defence which is often far more straight forward.

 

What do I need to demonstrate to show duress?

You will need to show that you only acted for as long as was necessary.  In a driving case where you need to escape a dangerous situation, for example, when you are over the legal alcohol limit, you must stop as soon as the danger has been averted. If you carried on driving, you would no longer have a defence.

You must be able to demonstrate that

  • no other action could be taken
  • there was genuinely a greater evil that was being avoided by behaving in the way that you did
  • your behaviour did not go beyond what was absolutely necessary.

What if I have been threatened?

Sometimes a person will say that he committed an offence out of fear for his personal safety or that of someone else, because of threats that have been made.

The key point is for there to be a clear and close danger combined with the threat of serious injury or death. A threats to cause damage to property is unlikely to constitute a threat serious enough to provide a duress defence.

If there is a large gap in time between threat and offence so that a person could have gone to the police but did not, it would be extremely unlikely that any defence could succeed.

Gangs, criminality and duress

The defence can often arise in the context of gang violence or where a person might owe money to loan sharks due to drug use. Unfortunately for such individuals, the defence of duress is unavailable to those who, having entered those worlds voluntarily, understood how violence was used as a means of securing particular objectives.

In relation to gang membership the court of appeal, in Sharp [1987] QB 853, has ruled:

“… where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress.”

As always though, the law on this point is very complex so it will always be best to seek our expert legal advice.

 

What is the legal test for duress?

In Howe [1987] AC 417 the court expressed the test in the following terms:

“Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or … cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence].”

Do duress or necessity of circumstances apply to all offences?

 Duress can never be a defence to murder or attempted murder, but strangely it may be a defence to conspiracy to murder (Ness [2011] Crim LR 645).

The potential harshness of this rule can be illustrated by the case of Wilson [2007] 2 Cr App R 411, where a 13-year-old boy, powerless to ignore the instruction of his father, was unable to advance the defence at trial.

It is thought to potentially apply to all other offences.

Can necessity apply to using cannabis for medicinal purposes?

The short answer is no.

There is no defence of necessity or duress available for using cannabis for medicinal purposes. There have been many cases on this point and in 2005 the courts comprehensively rejected any such argument, stating that it fell well outside of the ambit of duress. It may however amount to mitigation of the offence.

How we can help

The defence of duress and necessity is complicated.  As a result this article can only ever be a short overview.  Whether it can apply in your case will be entirely dependent on the evidence.  It is vital, therefore, that you obtain expert legal advice and representation immediately the police want to speak to you.

You can find details of your nearest office here.

Alternatively you can use the contact form below.

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