Tag Archives: defence

Policing public protests and protest law

Recent news coverage suggests that the Metropolitan Police  will be pushing for the prosecution of the more than 1,100 people arrested during last month’s Extinction Rebellion protests.

The environmental protests across London caused massive disruption in certain parts of the city. There is a risk that they may be set to spread across other towns and cities over the coming weeks and months.

Public protest has always been a legitimate and important part of the democratic process.  As such, these rights are enshrined in law.

An important question remains, howver.  How do the police balance the right to protest against the rights of other people to go about their lives unimpeded?

protest law

Why have people been protesting?

Extinction Rebellion has organised the protests.   This is a group concerned about the environmental destruction of our planet.

Frustrated that other attempts to force change in governmental behaviour have failed, they have resorted to a new form of peaceful protest.  On its website the group claims:

‘Civil disobedience works when it’s peaceful, respectful, disruptive and undertaken en masse. We don’t want to disrupt people, but our Government’s failure over the last 30 years leaves us no choice. If we had functioning democracies, we wouldn’t need to. We’ve tried petitions, marches, letters, reports, papers, meetings, even direct actions; and emissions have continued to rise. Governments prioritise the short term interests of the economic elites, so to get their attention, we have to disrupt the economy. They have left us with no other option.’

 In London the protesters blocked major roads and bridges, leading to significant chaos and disruption.

What was the police response?

The Metropolitan Police set out the dilemma during the protest in this way:

‘The serious disruption the Extinction Rebellion demonstrations are causing to people in central London and beyond is unacceptable and we completely understand the concern it is causing to those who are disrupted by it.

 Ultimately, the Met has a duty to balance the rights of those engaged in protest and who are acting within the law, against the needs and rights of Londoners to go about their daily lives with minimum disruption. Where people are not acting within the law we continue to arrest them, and we anticipate arrests continuing to rise. We are also working closely with partner agencies, Transport for London, British Transport Police, City of London Police, City of Westminster and the Mayor’s Office, as well as the business community.

 …we will have had more than 1,000 officers on the streets policing the demonstrations. This is putting a strain on the Met and we have now asked officers on the boroughs to work 12-hour shifts; we have cancelled rest days and our Violent Crime Task Force (VCTF) have had their leave cancelled. This allows us to free up significant numbers of officers whilst responding to local policing. We would also like to reassure people that we have ring-fenced the VCTF so we retain the capacity to deal with any unrelated violent incidents.

However, the protesters need to understand that their demonstration is meaning officers are being diverted away from their core local duties that help keep London safe and that this will have implications in the weeks and months beyond this protest as officers take back leave and the cost of overtime.’

Was anyone being arrested?

 It is an almost unique feature of this protest that people are aware of the risk of arrest and were willing to be arrested – this ironically presents an incredibly difficult policing challenge.

On this issue the police said at one stage:

‘…we have arrested more than 460 people, the large majority for breach of Section 14 [of the Public Order Act 1986) and obstruction of the highway. Of those arrested, so far eight people have been charged with those offences. At this stage it is better for us to keep our resources and custody capacity moving and flexible than leave protesters sitting in cells for up to 12 hours before going to court for what, although highly disruptive, are lower level offences.

So everyone else arrested has been released under investigation and will be brought back to be formally interviewed and charged as appropriate in due course. We are aware that means some protesters immediately return to the area to resume their activities; those people will be arrested again.’ (By Saturday 20th April the number of arrests had risen to almost 800, and eventually to over 1100).

Will all those people be prosecuted?

Although this still remains to be seen, it is clear that the police wish all those they believe to have been involved in illegal activities to face court proceedings.  This in turn could lead to any number of contested prosecutions that would in turn place an immense strain on the criminal justice system.

As a result, many commentators think that those released under investigation will face no further action.

Are there any legal defences to these charges?

There are several defences potentially available.  The right to protest peacefully is not an absolute one.  Case law is generally unhelpful. There are some developing areas of legal challenge and these are the ones that defence lawyers will be concentrating their efforts on. Law is a living instrument and must develop as society responds to concerns such as the ones raised by these protesters.

We anticipate that there will be a good number of legal challenges flowing from these protests.

People must, however, be prepared to face arrest, prosecution and possibly a criminal record and must individually decide whether that is a price worth paying.

Contact a specialist in protest law

protest law solicitor
Kevin Tomlinson

Our staff have a wealth of experience dealing with a wide range of protest law related offences.

Chesterfield crime solicitor David Gittins recently successfully defended an individual in a multi-defendant trial charged with anti-fracking protests.

Gavin Haigh

Both Kevin Tomlinson and Gavin Haigh continue to be contacted by members of protest groups in order to advise and assist individuals across the country.

Rob Lowe

Clients are impressed with the dedication of both Gavin and Kevin to their defence.  We have a willingness to visit the site of any allegations where necessary.

David Gittins

On occasion this has included standing up to landowners who attempt in intimidate them and hinder the preparation of cases.  Their representation of individuals means that they are regularly recommended within the Protest Community.

Protest law is an exceptionally complicated area of law but our solicitors David, Kevin, Gavin who are ably assisted by Chesterfield accredited police station representative Rob Lowe have a history of successfully representing people accused following a wide range of protests including:

  • Anti-fur protests
  • Anti-hunt protestors
  • Aggravated trespass offences
  • Protecting Badger Setts
  • Obstruction of the Highway offences
  • Anti-fracking protests
  • Animal right activists
  • climate change protests
  • international law and human rights protests, such against use of certain plant machinery in palestine

The types of cases dealt with include:

  • aggravated trespass
  • obstruction of highway
  • s241 TULRA 1992 (
  • s 14 Public Order Act (conditions on assemblies and processions)
  • criminal damage
  • public order offences

Advice in police interview is always be FREE OF CHARGE and our attendance will always be of value to you.

If you face proceedings before the Magistrates’ or Crown Court it may well be that legal aid is available to assist with your representation.

Please contact our Chesterfield office on 01246 387999 for expert protest law advice 24 hours a day, 365 days a year.

protest law
VHS Fletchers Chesterfield



Assisting an offender – a parental dilemma

It is a nightmare scenario that potentially any parent could face. A child returns home, late at night, in an agitated state.

He hurriedly tells you that he has been in a fight, it wasn’t his fault, but someone has been hurt, badly. Further details are not forthcoming, but he thinks the police will be coming to arrest him. Thinking fast, and in order to protect your child, you take his clothes and put them in the wash.

Before you can even think of assembling an alibi for him, the police have kicked down the door and found your son cowering in his bedroom. He is naked, and there are no clothes in sight.

The experienced officer knows just what to do, rushing through to the kitchen and unplugging the washing machine. It will later be taken away so that the contents, including the water, can be forensically tested.

Unsurprisingly your son is arrested, but what fate awaits you?

assisting an offender

Assisting an offender or perverting the course of justice

How this story ends depends on precisely what the police discover, assisting an offenderbut it is often proved that a terrified parent has acted to protect their child.

The act of putting those clothes in the washing machine or providing a false alibi amount to attempts to pervert the course of justice.

In other scenarios family or friends might provide some safe harbour for a person fleeing the police. Again, this is a serious criminal offence if done knowingly.

If convicted a prison sentence will inevitably follow, and another life will be shattered.  An example of such a case of assisting an offender can be found here.

We will investigate any potential defence for you

In some cases, there might be a viable defence.  You can be assured that we will find one if it exists. In other cases, the task is to mitigate by  telling the story from the parental perspective. What do you think you would do in this scenario? Or more to the point what would you do if it became a reality?

We might not like to think so, but any one of us could be caught up in a nightmare like this.

All manner of people can find themselves caught up in the justice system. We don’t see criminals, we see people, with their own unique set of circumstances.

assisting an offender

Contact a solicitor who is a criminal law specialist

If you are arrested or know that the police wish to speak to you about any offending arising our of a criminal investigation such as assisting an offender or perverting the course of justice then make sure you insist on your right to free and independent legal advice.  As you can see, the courts will always take such offences seriously upon conviction.

The advantages of such early advice legal advice can be found here.

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.

Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands and will happily travel across the country to provide representation for all football related offences.

assisting an offender
VHS Fletchers offices across the East Midlands

Alternatively you can contact us using the form below.


Can modern slavery provide a defence to criminal charges?

Raising the issue of modern slavery – can it provide a defence to drug dealing and other criminal offences?

The short answer is: maybe.

modern slaverySection 45 of the Modern Slavery Act 2015 provides a defence to specific criminal charges where it is shown that they were committed under a compulsion due to slavery or exploitation where a person is 18 or over, or as a direct consequence of slavery or exploitation where a suspect is under 18.

The latter test, for children, is less difficult to establish. It is a defence similar to duress.

This defence could, for example, be used for drugs offences committed as part of a ‘County Lines’ drugs ring.

What else is modern slavery a defence to?

The modern slavery defence can be used for any criminal offence not listed in Schedule 4 of the Modern Slavery Act 2015.

It can’t be used for serious crimes like

  • murder
  • manslaughter
  • kidnapping
  • piracy
  • serious violence
  • firearms offences
  • robbery
  • burglary
  • arson
  • criminal damage
  • most sexual offences, or
  • modern slavery offences themselves.

There are other offences to which the defence does not apply.

modern slaveryIt can be used as a defence to any other crime. It is used for victims of ‘County Lines’ drugs offences but also applies to most immigration offences, minor assaults, shop thefts, or conspiracy to do any of these things. Anyone who is trafficked or exploited can potentially benefit from it.

Children may be exploited for a variety of reasons by gangs and used to carry and supply drugs. Children who are particularly vulnerable are often targeted, and they may feel that they can’t tell anyone in case they are arrested and punished.

What needs to be proved?

The defence requires several things, depending on a person’s age. In both cases, they need to be a victim of slavery or exploitation.

Those over 18 rely on s.45(1), where they are not guilty if:

  1. The crime is committed because they are made to do it
  2. They are made to do it for some reason connected to the slavery or exploitation
  3. A reasonable person, with the same characteristics, would not have had a realistic alternative in that situation.

A person under 18 relies on s.45(4), where they are not guilty if:

  1. The crime is committed as a result of the person being or having been in the past, a victim of slavery or exploitation, and
  2. A reasonable person, with the same characteristics, would have done the same.

The defence for those under 18 is less difficult to establish, reflecting the increased vulnerability of children.

A person has to raise enough evidence for it to be possible that they are a victim of slavery of exploitation within the meaning of the Act. The prosecution will have to make the Magistrates’ or jury sure that the defence does not apply.

modern slaveryIf they cannot, a person then has to show it’s possible that the offence was carried out either under a compulsion relevant to or as a direct consequence of that slavery or exploitation, dependant on the age of the defendant. This, again, will have to be disproved so that the tribunal is sure it  does not apply.

If the prosecution cannot disprove either of these things then the defence succeeds.

How can we help you present your defence?

Modern slavery 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.

We are experts at dealing with vulnerable clients and children, including many victims of exploitation by ‘County Lines’ drug gangs.

As a result, if you are arrested or know that the police wish to speak to you about a criminal offence and you wish to consider whether you have a defence, 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 find your nearest office here.

modern slavery
VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:



Sleepwalking and the defence of automatism

Sleep walking and automatism

Imagine waking up one morning and the horror of the night before quickly unfolds.

Blue lights and uniformed police officers greet you, search your house and find your girlfriend dead in the bathroom.

You have no memory of anything happening overnight, and she was alive and well when you went to sleep.

You are arrested and while riding in the back of the police car, can only think that you must have done it while asleep. It sounds almost comical that this could actually be a viable defence, but the reality is that it could well be.

Are you guilty?

Sleepwalking is most often used as a defence to violent or sexual offences (often referred to as ‘Sexsomnia’) and is a legitimate defence to both.

It falls under the defence of automatism, which is further broken into two types. Which type of automatism will depend on the cause:

  • internal (insane automatism), or
  • external (simple automatism).

Both of these mean you didn’t act knowingly but acted automatically and without the intention to commit the crime.

It is likely that if this state was brought about as a result of self-induced intoxication, the defence will not be available according to Finegan v Heywood The Times, May 10 2000.

Insanity or non-insane automatism?

Insane automatism is a more difficult defence to put forward.  It requires the defence to prove that it is more likely than not the explanation for the offence.  The rules to be followed are those set out in the M’Naghten case.  The defence also needs to be supported by medical evidence of an internal cause.

Simple automatism, on the other hand, requires the defence only to provide enough evidence to make the issue “live”, in other words to make it a realistic possibility that you acted unknowingly.

Expert evidence will probably be required in both cases:

“I do not doubt that there are genuine cases of automatism, but I do not see how the layman can safely attempt, without the help of some medical or scientific evidence, to distinguish the genuine from the fraudulent” (Hill v Baxter (1958) 1 Q.B. 277, 42 Cr. App. R. 51).

The prosecution will then have to disprove it so that the jury can be sure you acted knowingly.

There is some legal debate in other jurisdictions concerning the class in which sleepwalking might fall, but the courts in England and Wales are yet to grapple with this.  This is perhaps just as well, as the law is complicated enough as it is.

The Court of Appeal

What are the outcomes?

Non-insane automatism, if accepted, will lead to a simple acquittal: not guilty.

Insane automatism is slightly trickier and results in a special verdict: not guilty by reason of insanity. The sentencing options available to a judge are then limited to an absolute discharge, a supervision order, or a hospital order.

Instruct an expert in criminal defence

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 about a case that we successfully defended where automatism was the issue here.

 You can find your nearest office here.

VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:



Admissability of Evidence argument at Chesterfield Magistrates

admissability of evidenceWe have previously written about the increase in prosecutions over recent years where there is no statement from the alleged victim in the case.  The victim might not be supporting the prosecution or may even be unknown.  This will lead to arguments over the admissability of evidence.

The reasoning is that even though a victim is unwilling to assist the Prosecution, a person should not be able to avoid responsibility for offending that they have committed.  Of course, there are a number of risks to proceeding without evidence from the person who ought to know best what, if anything, happened.

Prosecution rely on principle of Res Gestae

In order to present such cases the prosecution will often rely on a rule of evidence called Res Gestae.  This allows hearsay evidence that would usually not be allowed in court to be used as admissable evidence.

You can read more about this rule of evidence here.

Unfortunately we have noted that the prosecution seek to rely on this exception to the usual rules of evidence in a number of cases where it doesn’t apply.

As a result it is vital to have an experienced solicitor who is able to argue your case in Court to try and avoid this from taking place.

Recent case defended by Chesterfield crime solicitor

Chesterfield Crime Solicitor Kevin Tomlinson was recently presented with such a scenario.  His experience told him that the prosecution was trying to admit evidence in circumstances where it was not admissable.

His skill and expertise as an advocate persuaded the Magistrates that he was right.  The evidence was ruled inadmissable and his client was found not guilty.

Domestic violence allegations

Kevin’s client faced charges of common assault and criminal damage within a domestic setting.  Police officers attended the alleged victim who gave an account implicating stating that our client was responsible for the offending.

She alleged that he had been aggressive and threatening towards her when she returned home with a friend after a night out.  After the friend left he had then assaulted her in the bedroom and caused damage to a wall and perfume bottle.

The police had obtained a recording of the 999 call.  The initial complaint had also been recorded on police bodycam footage.  Finally she made a written witness statement.  Here friend had also made a statement describing our client’s behaviour before she left.

During the course of the investigation, the complainant had provided a further statement stating that she no longer supported the prosecution and wished to withdraw her complaint.

From the outset of the case our client had set out a defence.  He told the police that he had not done what was alleged against him and was therefore not guilty of the offences.

Key witness did not attend the trial

In light of the later statement taken from the complainant it was not surprising that the complainant failed to attend Court for the trial. The supporting witness also failed to attend.

admissability of evidenceDespite this, the prosecutor informed Kevin that they wished to proceed with the case.  They intended to use the account provided by the complainant in the 999 call as well as what she told the police upon their arrival.  The reasoning was that this evidence would be admissable using res gestae.

Kevin argued against the admissability of evidence relating to these allegations.  The key requirement, that the witness was so overcome with circumstances of the situation that she could not have made the allegations up, did not exist in this case. She was calm during both the call and the conversation.  The assertion that the allegation could not have been made up did not stand up to scrutiny.

Additionally, Kevin was able to argue that instead of trying to admit evidence in this way the prosecution, who had known for weeks that the witness did not intend to attend Court, should have taken the appropriate steps to have her there.  The doctrine of Res Gestae should not be used to avoid calling witnesses as it prevents the prosecution challenging the evidence.

Not guilty verdict after trial

admissability of evidenceKevin’s argument found favour with the Court who refused the Crown’s application meaning the Prosecution had no option but to offer no evidence against Kevin’s client.

This case highlights the importance of instructing a solicitor.  It is important that you do not rely on a solicitor appointed by the court as their responsibilities to you in your case are limited.

Had the defendant in this case been unrepresented it might be unlikely that they would effectively challenge the admissability of evidence of this nature and the outcome could have been very different.

Instruct an solicitor who is an expert in the admissability of evidence.

Criminal trials will always feature a certain level of complexity.  The best way to prepare for trial is to seek legal advice at the earliest possible moment.

If you are arrested 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.

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.

A further example of a successful argument against the admissability of evidence can be found here.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

racially aggravated
VHS Fletchers offices across the East Midlands


What is entrapment? Is it a defence?

Agent provocateur is French for “inciting agent”, an entrapment situation where a person is enticed, incited or encouraged into committing an offence that he would not have otherwise committed.

How does it relate to criminal law?

entrapmentThe police frequently use undercover police officers in relation to drugs offences. An officer becomes familiar with local drug users and suppliers, and evidence for supply-related offending is obtained.

If the officer asks the suspect for drugs is he an agent provocateur, is he an “inciting agent”?

Some people would try to argue he is and that they wouldn’t have committed the offence unless he had asked them. The difference is between the officer causing the offending and merely providing an opportunity for it to be committed with the officer rather than someone else.

What have the courts said, and is entrapment a defence?

entrapmentEntrapment is not a defence, but it could be argued that the case should not be brought at all.

This would involve a consideration as to the degree of persuasion, the gravity of the offence. The question of exclusion of evidence may also arise.

In the case of Shannon it was said that if there is good reason to question the credibility of the evidence given, then the judge may conclude that the evidence should be excluded.

Two leading cases involved the supply of drugs to an undercover police officer. “L” argued that he had been lured into the supply.

The Court held that it would be acceptable if officers were to provide a person with an unexceptional opportunity to commit a crime and the person then freely took advantage of that opportunity.

entrapmentThe situation would be quite different and would be an abuse of process if officers instigated an offence by offering inducements and luring a person into a course of action he would not normally have followed.

In “G’s” case the actions of the officers, by contrast, were said to go beyond those of undercover agents as they instigated the offence, there was no evidence to suggest that without their intervention it would have been committed.

In a case involving an undercover journalist (Shannon v UK), it was said that an offender was not entrapped when he supplied drugs to the journalist as he had not been placed under any pressure to do so.

Do undercover officers have rules to follow?

There is an Undercover Operations Code of Practice issued jointly by all UK police authorities and HM Customs and Excise.

Contact one of our criminal law solicitors to discuss issues of entrapment.

We are experts at assessing evidence and putting forward legal arguments. We can advise you as to whether entrapment applies to your case or not.

As a result, if you are arrested 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.

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.

racially aggravated
VHS Fletchers offices across the East Midlands


What to expect as a witness in court

If you have provided a statement for the prosecution or for the defence you may be called as a witness in court to give evidence at the defendant’s trial.

Is there help available for me as a witness in court?

defence witness in courtThe Witness Service can provide assistance for any witness who has to attend court. This support can be both practical and emotional. They can provide information about the court process, show you the courtroom prior to the trial and assist with any expenses claim.

If you are a prosecution witness the Crown Prosecution Service witness support unit will be in touch with you and will provide contact details for witness support. If you are a defence witness the solicitor representing the defendant can provide you with support and also provide the contact details for the local witness service.

What happens at court?

 When you attend as a witness in court, you can sit in a separate witness room rather than the general waiting area if you wish. You will be spoken to by the prosecution or defence lawyer, as appropriate, before the trial starts.

Will I be told what to say?

 Whilst the lawyer will be able to provide you with information on trial procedure, layout of the court and the roles of those involved they cannot “coach” you on the evidence you will give as a witness in court. There are very strict rules about training witnesses because this could have a potentially negative effect on your evidence.

Can I read my statement?

You will be provided with a copy of your statement prior to the trial so that you can read through it before you give evidence. You will not usually be allowed to have it with you when you give evidence though. If the rules of evidence allow, you may be able to refer to your statement during evidence in order to refresh your memory.

Can I speak to any other witnesses?

 If there are a number of witnesses, you will not be allowed to communicate with anyone who has given evidence while you are still waiting to do so.

If you are a defence witness, you should also not discuss anything about the trial with the defendant once the trial hearing has started.

The prosecution and defence lawyers are not allowed to discuss any evidence that has been given with you before you give your evidence.

What happens in court?

prosecution witness in courtYou will be called into court at the appropriate time and asked to swear on a holy book or affirm that you will tell the truth. You will then be asked questions by the prosecutor first if you are a prosecution witness and then by the defendant’s representative, or vice versa if you are a defence witness. If the defendant is not represented, you may be asked questions by a court appointed lawyer in his place if the court do not feel it is appropriate for him to ask you questions directly.

Once you have finished giving evidence you may be released from court or you can stay in the public gallery to watch the remainder of the trial.

I’m really worried, do I have to attend court?

 If you think that you would benefit from “special measures” such as screening from the defendant or giving evidence from remote video link you should contact the prosecution, defence solicitor or court as appropriate.

A witness summons can be issued if the court is aware you do not want to go to court.  This is something that you should speak to a solicitor about. If you fail to attend court in answer to a witness summons, then you may be arrested and brought to court.

Contact a criminal law specialist about being a witness in court

It may be that you have given a witness statement to the police and received a witness summons.  Alternatively it might be that you are thinking of doing so but worried about the potential consequences.

You might have provided our office with a statement in respect of one of our clients, or are considering doing so and want to discuss this further.

Contact your nearest office or the office preparing the defendant’s case to discuss any of the matters further.

VHS Fletchers East Midlands offices

Alternatively please use the contact form below.


Consent and Sexual Offences

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.

consent rape

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:

  1. Did sexual intercourse take place?
  2. Did the complainant consent to sexual intercourse?
  3. Did the complainant have the freedom and capacity to consent?
  4. 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.

consent sexual offenceIn 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.

consent rape

It is our job to present the strongest case possible.  You can read more about how we will prepare your case fro trial here.

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.

consent sexual offences

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.

duress necessity of circumstances

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.


Police trained to hide helpful evidence within sensitive material schedules

Following on from the revelations about failures in disclosure identified last year, on 3 April The Times published further information about the scale of the failure by the police and sensitive materialprosecution to disclose evidence vital to fair trials.  It is claimed that the failure to disclose such key evidence is both routine and deliberate, including hiding evidence within sensitive material schedules.

These reports are against a background of interest in the criminal justice scheme, including a BBC Survey, the publishing of a Charter for Justice and a campaign to send every sitting MP a copy of the recently published book by the Secret Barrister about the crisis in the criminal justice system.

A dossier has been produced that draws on the reports of a number focus groups held with the police, prosecutors and judges.  The file also includes the results of a survey of prosecutors.  It was obtained by the charitable organisation The Centre for Criminal Appeals.

Helpful evidence hidden on sensitive material schedules

The research has identified a commonly held view that the defence is not entitled to see evidence that might undermine the case sensitive material scheduleagainst an accused.  Tactics are adopted by the police to stop it being handed over.  At least one force trains its officers to hide such material in a ‘sensitive material’ schedule which means the defence are unlikely to discover that is exists and disclosure may well be avoided.

One comment from a police focus group was ‘If you don’t want the defence to see it, then [evidence] goes on the MG6D’, this list of ‘sensitive material’.

A prosecutor is quoted as saying that ‘In even quite serious cases, officers have admitted to deliberately withholding sensitive material from us and they frequently approach us only a week before trial.  Officers are reluctant to investigate a defence or take statements that might assist the defence or undermine our case”.

Material should only appear on a sensitive material schedule where the disclosure office believes its disclosure ‘would give rise to a real
risk of serious prejudice to an important public interest.’  The reason for that belief should also be stated, and the officer must sign off on the schedule.

It is envisaged that such sensitive material will not just be that which helps the defendant. Instead, examples are:

  • material relating to national security;
  • material received from the intelligence and security agencies;
  • material relating to intelligence from foreign sources which reveals sensitive intelligence gathering methods;
  • material relating to the identity or activities of informants, or undercover police officers, or witnesses, or other persons supplying information to the police who may be in danger if their identities are revealed;

As a result it is unlikely to include evidence that simply points to the innocence of a defendant.

Prosecution also at fault in disclosure decisions

However fault is also identified on the part of prosecutors.  Sometimes this is due to the volume of cases, in combination with a lack of time to do the job properly, poor quality police investigations and the pursuit of ‘wrong’ priorities.

It remains to be seen whether the new Director of Public Prosecutions who will replace Alison Saunders when her contract expires in the autumn will have the resources to effect any meaningful change.

Instruct VHS Fletchers to ensure adequate disclosure

A judge within one of the focus groups observed, ‘There seems to be an idea that the defence is not entitled to see things but where the defence press matters, this yields results.’

As a result, until the culture changes and more resource is made available, to a great extent an accused will be dependent upon their sensitive material scheduleslawyer identifying whether material is likely to exist and make an appropriate application for disclosure.

Our team of experienced Crown Court litigators and advocates will ensure that disclosure in any particular case is meaningful, rather than, as one prosecutor put it, ‘more of an administrative exercise‘.

You can read about two recent cases where our requests for disclosure made a difference here and here.

Find your nearest office here or use the contact form below.