Recently, the high profile prosecution of ex-police officer David Duckenfield relating to the Hillsborough tragedy ended without reaching a conclusion. A number of papers reported that there was a hung jury. So, what does that mean?
In an ideal world, a jury will reach a clear conclusion by either convicting or acquitting the defendant.
Where a case retains the original 12 jurors at least 10 must agree on the verdict. If the numbers fall short, for example, with 8 wanting to acquit and 4 wanting to convict, that will not be an acceptable verdict.
If the jury indicates that they will not be able to reach a verdict in accordance with the law then then that jury will need to be discharged.
In legal terms, this is often referred to as a hung jury.
What happens if there is a hung jury?
The prosecution can apply to have the defendant tried again. This will be the outcome in most cases.
The decision is one for the trial Judge who will consider whether or not it is in the interests of justice for a retrial to take place.
Typically, the court considers questions which include (but are not limited to) whether:
the alleged offence is sufficiently serious to justify a retrial
if re-convicted, the appellant would be likely to serve a significant period or further period in custody
the appellant’s age and health
the wishes of the victim of the alleged offence.
If prosecutorial misconduct is alleged then other factors will come into play, analogous with whether it is an abuse of process to allow a retrial.
In most cases, the defence will not be able to properly resist the application. We would, however, always carefully consider all relevant factors and object if able to.
What happens if a second jury still cannot reach a verdict?
The usual practice in this scenario is for the prosecution to offer no evidence, although there are rare circumstances where a further retrial could take place.
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 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 case of Tommy Robinson, or to give him his real name, Stephen Yaxley-Lennon, has brought the issue of contempt of court into the public eye, but what is it all about?
What is contempt of court?
The interesting thing about contempt of court is the many ways in which it can be committed. It can be civil or criminal in nature. This means that conduct that is not itself a criminal offence can still be punishable by the court. Criminal contempt goes beyond simple non-compliance with a court order.
So, give me some examples?
In Yaxley-Lennon’s case, it was his reporting and commenting on a trial which was in progress with the potential to prejudice those proceedings. He had previously committed the same contempt by attempting to film defendants within the precincts of a court last year.
In a case in Sheffield, contempt of court was committed by protesters who had given an undertaking not to go within a safety zone erected around trees that were to be felled despite controversy.
In the civil court a freezing order was made against AndrewCamilleri. He breached that order on a number of occasions. This led the claimant to make an application to the court for committal to prison for contempt of court.
A further case involving breaches of freezing orders made in the civil court was that of Davies. This case involved persistent and deliberate breaches.
A witness who refused to give evidence after ignoring a witness summons and being brought to court found himself on the wrong side of contempt of court proceedings.
A defendant who had an outburst in court during his sentence hearing, then refused to apologise, followed by another outburst, was dealt with for two contempt of court offences. He received a sentence for this in addition to the offence for which he was already being sentenced.
A lady took photographs inside a court building of a defendant and their friends making ‘gestures of defiance and contempt’ inside the court precincts with the court notice board behind them. The defendant was also found to be in contempt for inciting the taking of the photograph.
So, tread carefully, it is easy to find yourself in the dock.
What can I get?
Up to two years imprisonment at the Crown Court or one month at the magistrates’ court (although it can be up to 2 months in relation to some civil orders).
Yaxley-Lennon received ten months imprisonment for his latest offence to be served consecutively to three months imprisonment for the offence last year, as he had been on a suspended sentence for that. Both conviction and sentence are currently subject to appeal.
Two of the tree protesters received suspended prison sentences of two months.
Camilleri was fined £100,000 whilst Davies was given a sentence of 12 months immediate imprisonment.
The witness who refused to give evidence was given 12 months imprisonment, reduced to three months on appeal.
The defendant with his repeated outburst was given three- and six-months imprisonment consecutive to each other, and also to the 20 months for the original offences.
The photograph taking offender was given 21 days imprisonment with the defendant who incited the taking of it was given 28 days in prison.
How can we help?
It can be seen that there are some ways to commit contempt of court that the general public may not even realise could land them in trouble with the courts.
We are experts in this area and can advise and represent you.
On some occasions you will be interviewed by the police in relation to an alleged contempt. If you are arrested or know that the police wish to speak to you about an allegation of contempt of court then make sure you insist on your right to free and independent legal advice.
Nottingham solicitor advocate Lauren Fisher recently represented a client before Lincoln Crown Court. He was jointly charged with another with a single allegation of robbery in a dwelling. Two other defendants were involved in the trial. One defendant had already pleaded guilty to his involvement in two robberies, and our client was jointly charged with one of those robberies.
This was in effect a re-trial, an earlier trial having been abandoned due to the prolonged bad weather.
Robbery in a dwelling house
The charge that affected Lauren’s client was one of robbery in a dwelling. The prosecution case was that he, along with the co-accused, had attended the house of the victim. A taser had been produced. Demands were then made that a large sum of money be transferred using internet banking. In the event only half the amount was transferred, but the victim was forced to contact the bank by telephone to authorise the transfer.
Afterwards, it was said that our client and the co-accused left the property together.
Lauren’s client accepted that he had been present at the incident. He had given his friend, the co-accused, a lift to the address and gone in because his friend did not know how long he would be. At not time had he seen a taser, or hear the noise of one being discharge. He did not know that money was to be stolen.
Once in the property the co-accused locked the door. Once he was locked in, our client was unable to leave. He took no part in the robbery and was as frightened as the victim of the offence.
The issues for trial
The important issues in the case were:
did our client know about the other robbery on the indictment that also involved this victim?
had he seen the taser at the point of entry?
could the prosecution establish that our client had knowledge of what was to happen before we entered the address?
had he participated in the offence at all?
The case involved careful cross examination of a witness who had been subject to two frightening robberies, in particular the second incident that we were charged with. It was not disputed that either robbery had taken place, just whether our client was involved in any way.
As it was a re-trial, part of the preparation involved listening to the earlier evidence recorded on the court DARTS system. This would allow cross examination on any inconsistencies between the statements and that evidence, and any evidence given at this trial.
Careful cross examination by solicitor advocate
Through cross examination Lauren was able to confirm that it would not have been inevitable that her client would have seen the taser. The victim was not sure at which point they had seen the taser. He also changed his account as to whether our client had left the house or not. He perhaps struggled, in the end, to point to anything that our client had done or challenge the suggestion that we were scared of what was going on. There were inconsistencies in his evidence that could not be explained.
A persuasive closing speech
Lauren had to approach her closing speech carefully. She did not suggest that the victim was lying. Instead, she highlighted that it was likely that the witness believed what he was saying, but was mistaken. Although he had been a victim of a crime, the nature of the incident meant that he was easily confused about the detail.
The jury was directed towards the burden and standard of proof and how that related to all the evidence that had been heard. Having heard all of the evidence and the speeches in the case, Lauren’s client was found not guilty.
This was fortunate for her client, as the starting point after trial for an offence of robbery in a dwelling house in circumstances such as these was thirteen years in prison.
Instruct VHS Fletchers in your Crown Court case
We use a combination of in-house solicitor advocates and barristers, as well as specialists from the independent bar, to ensure that you have the representation that you need for your Crown Court case.
We aim to provide continuity of representation with a litigator and advocate assigned to your case at an early stage.
We have prepared our response to the latest Government consultation on legal aid funding entitled Amending the Advocates’ Graduated Fee Scheme. This time the Ministry of Justice wishes assistance on how to spend what is described as £15m of ‘new’ money on fee payments for those undertaking Crown Court advocacy.
It is optimistically hoped that the proposed fee scheme will attract suitable candidates to both the Bar and solicitors’ profession.
Unfortunately it seems unlikely that these proposals address these aspirations once the fee structure is looked at in detail.
For example, this view expressed within the consultation document is in conflict with the aim of properly funding those entering the profession.
Surely this paragraph ought to be acknowledging the damage to the junior end of the profession by choosing this as a priority? Instead it trumpets redistribution of existing funds to the cases that more senior counsel undertake?
We wonder if anyone involved in the initial negotiation, particularly the Young Barristers Committee, is regretting expressing this opinion by now?
The consultation document seems to express a genuine interest in the views of the profession. As a result there may be every reason to engage with the consultation. It is hoped that organisations such as the Law Society, CLSA and SAHCA will be making strong arguments on behalf of the solicitors’ profession as a whole and preparing responses detailing the realities of the fee cuts.
Having said that, we also approach the consultation with a certain amount of cynicism. The last two substantial consultations have resulted in Judicial Review proceedings when the government ignored the opinions proffered.
The Ministry has pledged a review of the current scheme. It is hope that this isn’t the same level of commitment that the government has shown in relation to its review of LASPO. We still wait for that to be concluded while people continue to be excluded from the legal aid scheme.
We have a number of concerns about the fee scheme in its entirety. If fails to reward those at the beginning of their careers and then penalises specialist advocates later in their career who deal with complex cases with a high page count.
It represents a significant cut in fees for many types of case and will not assist with in preserving the future of criminal advocacy.
Ben Stokes is the England cricketer who was charged with affray and acquitted by a jury.
But the video showed him hitting someone?
It did, his defence was that he was acting in self-defence, you can hit someone and still be not guilty of an offence in certain circumstances.
Why did the Crown Prosecution Service (CPS) charge him then?
It is not for the CPS to decide whether or not a person is guilty, its role is to assess whether there is a reasonable prospect of conviction, if there is sufficient evidence to proceed and it is in the public interest to do so.
In this case, the issue was for the court or jury to decide whether or not he was acting in self-defence or of another.
How does a jury make their decision?
Jurors are not allowed to discuss their deliberations with anyone outside of the jury room, so we can never know what discussions took place.
The Judge provided them with a “route to verdict” document which sets out the questions that the jury needed to ask themselves before coming to a verdict.
What was the “route to verdict”?
Did Ben Stokes use, or threaten violence towards another? If no, not guilty, if yes move to the next question.
Did he genuinely believe that it was necessary to use or threaten that violence so as to defend himself and/or another?
If yes, was the force reasonable in the circumstances he perceived them to be? If it was, then the verdict is not guilty.
If no, move to the next question.
Was the conduct of all of them, taken together, such as would cause a person of reasonable firmness present at the scene to fear for his personal safety? If yes, the verdict is guilty, if no or it may not have been, the verdict is not guilty.
What is reasonable?
The jury was given further guidance that only the use of reasonable force can be lawful.
A person who genuinely thinks he or another is about to be attacked may react on the spur of the moment. He cannot realistically be expected to weigh up precisely how much force he needs to use to defence himself or that other person.
If he has done what he honestly and instinctively thought was necessary, then that would be strong evidence that it was reasonable. On the other hand, using force out of all proportion to what he genuinely anticipated might happen to him or another, then that would be unreasonable.
How can our expert criminal solicitors help?
We will be able to give you advice as to the strength of the evidence in public order offences, the availability of defences and likely sentence upon conviction. You will always be helped by seeking this advice at the earliest possible opportunity.
As a result, if you are arrested for a public order offence or know that the police wish to speak to you about an offence of then make sure you insist on your right to free and independent legal advice.
In this case, Ben Stokes elected to be dealt with at the Crown Court rather than the Magistrates’ Court, we can advise you on the options available to you and the consequences of those options.
Today it was announced that the Government had suffered another setback in its relentless attack on publicly funded legal representation. Since being forced to withdraw its controversial two-tier plan for criminal work it has been forced to re-instate certain prison law cases into the scope of legal aid and had to abandon a scheme to tender for Housing Duty Solicitor schemes on the basis of both quality and price.
The Government had reduced payments by an unsustainable 37% argued The Law Society, putting at risk the viability of firms providing advice and assistance under the legal aid scheme. This would have a knock on effect for potential clients around the country as local solicitors’ practices had to close.
It is hope that this latest decision will force the Ministry of Justice to the negotiating table to devise a scheme that sees economically viable rates of pay in the most serious and complex of cases.
Bindmans Press Release
Bindmans, the solicitors instructed by The Law Society in judicial review issued the following press release on 3 August 2018:
“Today, a Divisional Court comprising Lord Justice Leggatt And Mrs Justice Carr DBE upheld a judicial review challenge brought by the Law Society to a decision made by the Lord Chancellor to introduce a 40% cut to the maximum number of pages of prosecution evidence (‘PPE’) that count for payment of criminal defence solicitors. The regulations introducing the cut will be quashed (para 143 of the judgment).
In practical terms, the cut has meant a huge amount of work on the most complex Crown Court cases has been unremunerated since December. Payments to criminal defence solicitors have been up to 37% lower, but the Legal Aid Agency has expected precisely the same amount of work to be done as before. This was the first occasion in which a cut of this kind had been made to Criminal Legal Aid.
The Divisional Court’s judgment is highly critical of the way the cut decision was made. Discussions with the Law Society on reform of the LGFS had been in train (para 23), but were “terminated” shortly before Ministry of Justice officials announced proposals to make the cut were announced in 2017. However, consultees were not told about or shown the analysis of costs trends officials had prepared for the Lord Chancellor to answer the “crucial question” of whether a cost judge’s decision had caused a substantial increase in LGFS costs and undermined the policy intention of the scheme (para 93). The Court observes (para 86) “no reason – let alone a good reason – has been given for not disclosing during the consultation process the LAA analysis and its results…”, concluding (para 97): “the failure to disclose this information was a fundamental flaw in the consultation process which made it so unfair as to be unlawful.”
An impact assessment accompanying the consultation paper had compounded the unfairness by giving a“misleading” impression of the basis for the decision (para 94):
“It should also go without saying that consultees are entitled to expect that consultation documents will not be positively misleading. When a draft Impact Assessment is published which purports to set out the “evidence base” for the proposal, including an analysis of costs and benefits and a statement of key assumptions and risks, the reader would understand that any analysis relied on to estimate the increase in expenditure which it was the policy objective to reverse was described in the Impact Assessment. The fact that the responsible Minister has certified that the Impact Assessment “represents a fair and reasonable view of the expected costs, benefits and impact of the policy” would further reinforce that understanding.”
As to the Lord Chancellor’s arguments that consultees ought to have deduced there was an analysis and sought it, the Court comments (para 93):
“It is difficult to express in language of appropriate moderation why we consider these arguments without merit. The first point, which should not need to be made but evidently does, is that consultees are entitled to expect that a government ministry undertaking a consultation exercise will conduct it in a way which is open and transparent.”
The analysis was disclosed for the first time during the course of the litigation and then analysed by the Law Society’s expert witness, Professor Abigail Adams, who identified fundamental errors. The Court went on to hold that these errors meant it had been irrational for the Lord Chancellor to rely on it, It was (para 122):
“we see no escape from the conclusion that the LAA analysis was vitiated by methodological flaws and that no reasonable decision-maker could reasonably have treated the figure of £33m [of increased cost] produced by that analysis as an estimate of increased expenditure attributable to the Napper decision on which reliance could reasonably be placed.”
The Law Society was represented by John Halford, Farhana Patel, Theo Middleton and Patrick Ormerod of Bindmans LLP and barristers Dinah Rose QC and Jason Pobjoy of Blackstone Chambers.
John Halford said today:
“Legal Aid was established, and should function as, a basic, non-negotiable safeguard of fair process and individual liberty in criminal cases. But rather than cherishing this vital part of the British legal system, successive ministers have undermined it with over a decade of cuts based on carelessly made decisions like this one. Had the Law Society not stepped up to defend criminal defence solicitors, the fundamental flaws in the analysis on which this decision was based would never have come to light and their irrationality would have escaped proper scrutiny.””
There is no magic to the phrase no comment. It is simply a device for a suspect to indicate that they have no intention of answering police questions. It allows the police to put questions and the interview to progress easily. An alternative would be to stay mute for the duration of the interview, but that would only prolong matters!
Advice on your decision to answer no comment
The decision whether to answer police questions or make no comment replies in police interview can be a difficult one. There are many different considerations to balance. Since the changes brought in by the Criminal Justice and Public Order Act 1994 many more suspects are advised to answer police questions than previously.
This Act allows Magistrates’ or a jury to draw conclusions from a no comment interview in certain circumstances. There are four conditions, including whether an accused failed to mention a fact later relied on in their defence and whether it was reasonable at the time for the accused to have mentioned this fact in interview or on charge.
Our advice is subject to legal privilege and cannot be disclosed
There is still, however, a place for the no comment interview but you are best advised to seek free and independent legal advice from a specialist solicitor or accredited police station representative before making the decision not to answer questions in police interview. As we are entirely independent of the police any advice suggesting that you reply no comment to police questions will be in your best interests.
Any advice that we give to you and your instructions that allow us to give that advice are confidential and subject to legal privilege. We can only disclose your instructions and our legal advice with your permission.
Your police station representative will always make a note of the instructions that you give, so even if you make ‘no comment’ replies they can give evidence to the court if necessary to show that you haven’t made up a defence once you are charged and papers are served.
Our advice will always be tailored to the circumstances of your case
Our police station advisers know that each case will turn on its own facts. Our advice will balance any risks and benefits to you of a no comment interview. You will be fully advised of the advantages and disadvantages of such a course of action to allow you to make a final decision.
Opportunity for a confidential consultation about the evidence
Before providing advice allowing you to make that decision your legal representative will always seek a confidential discussion with you about the evidence. That will allow them to take your instructions in private and give you advice. It could be that the police choose not to provide the private facilities necessary. That in itself could mean that a full discussion of the allegations is not possible and a no comment interview would be advised.
Your police station solicitor will be alive to factors that might affect whether you should answer questions – these could include youth, mental vulnerability, a hearing or speaking disability, poor command of language, a severe nervous state or other condition.
What if I am guilty of the allegation?
It may be that although you are guilty of the offence the police may not have enough evidence to put before a court to convict you without your admission. There might be concerns about the level of disclosure of evidence from the police which could suggest that the evidence to convict you simply isn’t there. As a suspect is ‘innocent until proven guilty’ you are perfectly within your rights to choose not to answer questions.
Alternatively, it might be that the police do not know the full extent of your offending and answering questions would make matters far worse for you. Again, this would be a valid reason for replying no comment to police questions in interview.
As the caution only talks about inferences rather than any benefit of an early admission, the Court of Appeal has stated that you cannot lose discount for early guilty plea on the basis of a no comment interview.
Our free and independent legal advice will balance these considerations against other concerns that you might have.
If you admit the offences in police interview then you will have the benefit of demonstrating remorse for your offending. True remorse can significantly reduce any sentence that you receive. The greatest demonstration of remorse might be the strongest evidence it is genuine.
Alternatively, an early admission might mean that a prosecution can be avoided and you can be diverted from the court system. To receive a caution or a restorative justice disposal an admission will normally be required from you.
What if I have a defence to the charge? Shouldn’t I tell the police?
There may be a number of reasons why you would choose not to answer questions if you are innocent of the charge. For example
You may know who the true culprit is but not want to name them
Your defence might involve admissions to some other damaging or embarrassing conduct but that is not illegal
We are unable to fully advise you as the police have not given us enough information about your case
The case is too complex or old to provide an immediate response
Other factors that might be relevant could include:
Your state of mind at the time of interview. Perhaps you were suggestible or in a state of shock?
You might be easily confused and liable to make mistakes in your account
There is a need to refer to information that isn’t to hand in police interview to check an alibi
We identify that there is some other good reason why you might not come over well in police interview
Our specialist police station advice will include whether there is a good reason for making no comment in interview, including whether a prepared statement should be used instead to control the manner in which the police are told about your defence.
We will advise you as to whether there are likely to be issues of admissibility at court relating to such matters as comment that you have made to the police upon arrest or any informal identification that might mean you should exercise your right to silence.
Always seek our free and independent legal advice in police interview
As you can see there are many factors that affect a decision whether to answer questions in police interview or answer no comment to any questions put. It is vital that you seek our advice which is free of charge before you commit to a decision that could provide the evidence to secure a conviction or lead to problems in any future court case.
We provide nationwide advice and assistance in the police station from our offices across the East Midlands. You can find your nearest office here. Our expert representation is available 24 hours a day, 7 days a week.
It would be thought that in relation to sexual offences and the issue of consent the issue should be straight forward – yes or no?
As always, life and the law are more complicated than that. The issue of consent is, unfortunately, not so simple.
What is consent?
A person consents if she or he agrees by choice and has the freedom and capacity to make that choice.
Can a drunk person give consent?
Yes, drunken consent is still consent. However, this is where problems can arise. If a person loses their capacity to choose through drink then he or she is not consenting.
Where a person is consenting is frequently the issue in many rape cases. As a result it is often one word against another.
The Courts have given the following guidance as to the issues to focus upon:
Did sexual intercourse take place?
Did the complainant consent to sexual intercourse?
Did the complainant have the freedom and capacity to consent?
Did the defendant reasonably believe that the complainant was consenting? This consideration will not apply in all cases.
Who decides?
At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.
How do you prove consent?
In the absence of something in writing, and even then, there could be doubts A jury will have to decide the issue having heard all of the evidence.
In some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting. There must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.
The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may no longer provide a defence.
There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.
How can we help?
This article is a brief analysis of potential issues, as you can see this is an area that would require careful assessment and expert advice.
The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other.
To ensure that your defence is properly advanced from the start, you will want to take advantage of our free and independent legal advice in the police station. The advice is free to you no matter what your income. You can read about the advantages of early advice here.
Sexual offences are likely to be heard before the Crown Court. We will always advise you as to your entitlement to legal aid to ensure affordable representation at trial. You can read more about Crown Court legal aid here.
We provide nationwide representation from our offices across the East Midlands. You can find your nearest office here. Alternatively you can use the contact form below.
Our clients will turn their mind to what punishment they might receive if they plead guilty to, or are convicted of, a criminal offence. In most cases the thought is whether it might be a prison sentence, a community penalty, or a hefty fine and perhaps not a directors disqualification.
While the substantive penalty is, of course, important, on occasion there are other things more serious to consider. In previous articles, we have looked at issues such as confiscation, and in this article, we consider a company directors disqualification.
What do business people need to consider?
The Company Directors Disqualification Act 1986 provides that a court may make a disqualification order where a person is convicted of an offence which is concerned with the mismanagement of a company.
There are a wide number of scenarios catered for under the Act. As a result the actual circumstances must be considered with care. In certain situations, offences committed abroad will also qualify, as set out in section 5A of the Act.
What conduct is relevant?
Both the internal and external management of the company are relevant to section 2(1) of the 1986 Act (Corbin (1984) 6 Cr App R (S) 17). A director’s general conduct in running the affairs of the business is also relevant (Georgiou (1988) 10 Cr App R (S) 137).
The court has extensive discretion in relation to most offences:
‘This is a completely general and unfettered power given by Parliament to courts on the occasion when a person is convicted of an indictable offence of that type. Parliament has decided not to give the sentencing court any guidance as to the way in which it ought to exercise its powers of disqualification in the very many and varied circumstances in which it may come to exercise those powers” (Young (1990) 12 Cr App R (S) 262).
What is a ‘disqualification order’?
The effect of the order is to prevent a person being involved in the future affairs of [any] company:
he shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the court, and
he shall not act as an insolvency practitioner.
How long does the order last?
An order made by a Magistrates’ Court can be for no longer than five years. An order made by the Crown Court must be no longer than fifteen years, although in relation to some offences there is a shorter time frame specified.
The Court of Appeal has on occasion supported the making of lengthy orders, for example, one lasting eight years in R v Singh-Mann and Others [2014] EWCA Crim 717.
Will a guilty plea make any difference as to the length of the order?
A guilty plea will not act to reduce the disqualification period. This is because the discount for an early plea does not apply to ancillary orders (Clayton [2017] EWCA Crim 49, [2017] All ER (D) 71 (Jan)).
It is, however, inappropriate to order disqualification where the offender is conditionally discharged (Young (1990) 12 Cr App R (S) 262).
It may be inappropriate for a court to order compensation to be paid by a director who, by virtue of the making of this type of order, will be deprived of the ability to earn a living (Holmes (1992) 13 Cr App R (S) 29).
What happens if I breach the order?
Imprisonment of up to 2 years may be imposed if an order relating to a directors disqualification is breached.
How we can assist in a directors disqualification case
We are experts in all aspects of criminal law. As a result we are well placed to advise you if the above provisions relating to a directors disqualification might be invoked in your case. If you have any concerns or simply to discuss any aspect of your case, then please contact your nearest office here.
