Tag Archives: domestic violence

News

New Domestic Abuse Legislation

new domestic abuse legislationOn Monday 21 January 2019 the government unveiled new domestic abuse legislation.  This represents its new strategy to tackle domestic abuse.  This follows a consultation exercise carried out last year which drew over 3,000 responses.

The measures within the new domestic abuse legislation are:

  • Introducing the first ever statutory government definition of domestic abuse, which will include economic abuse
  • Establishing the office of the Domestic Abuse Commissioner and setting out the Commissioner’s functions and powers
  • Providing for a new Domestic Abuse Protection Notice and Domestic Abuse Protection Order
  • Prohibiting perpetrators of abuse from directly cross-examining their victims in person in the family courts, and also giving the court discretion to prevent cross-examination in person where it would diminish the quality of the witness’ evidence or cause the witness significant distress
  • Creating a statutory presumption that complainants of an offence involving behaviour which amounts to domestic abuse are eligible for special measures in the criminal courts
  • Enabling domestic abuse offenders to be subject to polygraph testing as a condition of their licence following their release from custody
  • Placing the guidance supporting the Domestic Violence Disclosure Scheme on a statutory footing
  • Ensuring that where a local authority, for reasons connected with domestic abuse, grants a new secure tenancy to a social tenant who had or has a secure lifetime or assured tenancy (other than an assured shorthold tenancy) this must be a secure lifetime tenancy, and
  • Supporting ratification of the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention), by extending the extraterritorial jurisdiction of the criminal courts in England and Wales to further violent and sexual offences.

What will be the effect of the new domestic abuse legislation?

new domestic abuse legislationWhile we will have to await the passage of the bill through parliament to see the final package, one thing of particular note to us as criminal lawyers is the proposal to create a Domestic Abuse Protection Notice and Domestic Abuse Protection Order.

This will be based on the existing regime for criminal behaviour orders (formerly known as ASBOs). Breach of these orders will carry imprisonment of up to 5 years.

While the existing legislative provisions could be used in the context of domestic violence, they rarely are. What we have seen over the years is the specific tailoring of the framework to meet particular problems (in terrorism and trafficking for example).

We can, therefore, expect the effect of these orders to impact quickly, resulting in stiff prison sentences for those who breach them. The government estimates that hundreds more offenders may face imprisonment each year.

We do however foresee some real problems. Domestic abuse is a particularly complex societal problem.  Relationships are often problematic and rocky.  It is possible that breach will be used as a ‘weapon’ against many defendants. It will, therefore, be imperative to ensure that recipients of these orders understand the severe impacts and consequences that will follow. It will also be essential to ensure that orders are only made in appropriate cases.

As a firm, we closely monitor all legislative developments and will keep you updated as the new domestic abuse legislation progresses through parliament.

Contact an expert criminal defence solicitor

Cases of alleged domestic violence 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 navigating a successful path through the long and stressful court process.

As a result, if you are arrested or know that the police wish to speak to you about any criminal offence, including those alleging domestic abuse, 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 find your nearest office here.

new domestic abuse legislation
VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:

Contact

 

 

News

New report criticises defendants in Magistrates’ Court domestic violence cases

Dame Vera Baird QC, the Police and Crime Commissioner for Northumberland, has once more sought to bring issues of the prosecution of cases of domestic violence to the fore.

She has commissioned and published a report in which she denounces defendants who plead not guilty in cases alleging charges of domestic violence as ‘gaming the system’ in order to have cases dropped.

Magistrates refusal to grant CPS adjournment

The report maintains that defendants are using the period between plea and trial to intimidate partners into failing to attend court.  Once a witness doesn’t attend, it is claimed that the courts are all too quick to refuse adjournment requests, leaving the prosecution with no alternative but to offer no evidence, resulting in a not guilty verdict.

In 13 cases out 32 observed at one court centre, Magistrates refused an adjournment when the complainant failed to attend.  As a result, the cases were dismissed despite arguments to the contrary from the CPS.

Late change of plea

In 21 cases at one court centre, defendants entered a not-guilty plea and asked for a trial. On the various dates fixed, the observers noticed, 12 of them pleaded guilty as soon as the victim turned up and before they had given any evidence.

Criticism of defence practitioners

Defence solicitors also attract criticism.  Following a guilty plea or verdict, it is believed that they offer ‘irrelevant’ mitigation based on their client’s drunken state.

Of course, these complaints fail to acknowledge two important matters:

  • being drunk is an aggravating feature in sentencing guidelines rather than mitigation
  • whether a defendant was drunk may, however, allow the court to treat an isolated incident as being our of character

domestic violence

What is the real complaint?

In reality, the complaints within the report seem to relate to the following:

  • the failure to give proper training to Magistrates
  • a failure to properly fund support staff
  • under use by police and CPS of the charge of coercive or controlling behaviour
  • insufficient support of the complainant to ensure they attend to give evidence
  • failure by police or CPS to present full information in support of applications for restraining orders
  • evidential failings that impacted on the court process
  • courts not ordering Newton Hearing to decide a factual basis for sentence where certain parts of an incident are denied

All of these are capable of change subject to the necessary resources being provided.  The defence cannot be said to be responsible for any of them.  At first glance the analysis of the limited number of cases in the study does not acknowledge the legal considerations and framework that would apply in many of the cases.

Conclusions

The report is based on a limited number of cases in a single geographical region so the conclusions that could or should be drawn are perhaps limited.

While defendants can be confident that they may gain an advantage in pleading not guilty and having the matter listed for trial they will continue to do so.  Further, it is their right to test the evidence at trial.

domestic violenceThe labelling of the entering of a not guilty plea as ‘gaming the system’ is unhelpful.  Some defendants will do so hoping to gain the advantage of a witness not attending, others (perhaps the majority) will plead not guilty because they have a defence to the charges brought.

We regularly provide advice and representation at contested domestic violence trials.  An example of such a trial can be found here.

Those defendants who in the end plead guilty will lose credit for a plea that could have been entered earlier and will find it extremely hard to argue that any genuine regret or remorse exists.  Sentencing for domestic violence allegations are governed by a specific guideline.

The police and the prosecution have the evidential tools at their disposal to build many cases without the need for a complainant to attend.  Some considerations relating to such cases can be found here.

The full report can be found here.

Instruct an expert in defending domestic violence alleagations

domestic violenceAllegations of domestic violence are treated seriously by the courts.  They also need handling with sensitivity.  The law can be complex, particularly where the prosecution do not seek to rely on the complainant’s evidence.

As a result, if you are arrested or know that the police wish to speak to you about an offence of domestic violence 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.

defending domestic violence cases

News

New Domestic Abuse Sentencing Guideline Published

A new domestic abuse sentencing guideline was published on 22 February 2018, giving courts up to date guidance that emphasises the seriousness of offending involving domestic violence or other forms of abuse in a domestic setting.

domestic abuse sentencing guideline

What is domestic abuse?

There is no specific crime of domestic abuse.   It can be a feature of many offences including assault, sexual offences or harassment. The new domestic abuse sentencing guideline aims to ensure that the seriousness of these offences is properly taken into account when such offences are being sentenced.  The intention is that sufficient thought is also given to the need to address the offender’s behaviour and prevent re-offending.

Are there an existing domestic abuse sentencing guideline?

The new guideline replaces a domestic violence guideline which was published in 2006. A great deal has changed since then in terms of societal attitudes, expert thinking and terminology.

It was felt, therefore, that guidance for courts was therefore in need of revision to bring it up to date. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’.  This reflects that offences can involve psychological, sexual, financial or emotional abuse as well as physical violence.

When is the new guideline in force?

The domestic abuse sentencing guideline will apply to all offenders aged 16 and older sentenced on or after 24 May 2018.

How does this guideline change things?

The guideline identifies the principles relevant to the sentencing of cases involving domestic abuse, outlines how the seriousness of domestic abuse sentencing guidelineoffences should be assessed and highlights other factors that should be taken into account.

It brings a distinct change in emphasis in relation to seriousness.

The previous sentencing guideline stated that offences committed in a domestic context should be seen as no less serious than those in a non-domestic context, whereas the new guideline emphasises that the fact an offence took place in a domestic context makes it more serious.

This is because domestic abuse is rarely a one-off incident, it is likely to become increasingly frequent and more serious the longer it continues and may result in death. It can also lead to lasting trauma for victims and their children.

For the first time, the guideline also includes a reference to abuse which is perpetrated through use of technology, such as email or text, social networking sites or tracking devices fitted to a victim’s car.  These are increasingly common methods by which domestic abuse can occur.

The guidelines recognise that these offences can affect people of all backgrounds and the guideline is also clear that abuse can occur between family members as well as between intimate partners.

Will anything else change?

Yes. In particular, there is now additional guidance on restraining orders, along with new guidance on Victim Personal Statements.

In relation to restraining orders, the guideline now includes additional guidance to assist the court with a renewed focus on keeping the victim safe, particularly for those who continue or resume their relationship with the offender.

The guideline further reminds courts to take any Victim Personal Statement into account.  Where there is no such statement, this is not an indication of any lack of harm to the victim.

Sentencing Council member Jill Gramann said:

“Domestic abuse comes in many forms such as harassment, assault and sex offences. The increasing use of technology in offending has meant that it has also evolved in its scope and impact. The new guideline will ensure that courts have the information they need to deal with the great range of offending and help prevent further abuse occurring.”

What factors will a court take into account on sentence?

The following list of non-exhaustive aggravating and mitigating factors are of particular relevance to offences committed in a domestic context and should be considered alongside offence specific factors.

 Aggravating Factors
  • Abuse of trust and abuse of power
  • Victim is particularly vulnerable.   Although all victims of domestic abuse are potentially vulnerable due to the nature of the abuse, but some victims of domestic abuse may be more vulnerable than others, and not all vulnerabilities are immediately apparent)
  • Steps taken to prevent the victim reporting an incident
  • Steps taken to prevent the victim obtaining assistance
  • Victim forced to leave home, or steps have to be taken to exclude the offender from the home to ensure the victim’s safety
  • Impact on children  as children can be adversely impacted by both direct and indirect exposure to domestic abuse
  • Using contact arrangements with a child to instigate an offence
  • A proven history of violence or threats by the offender in a domestic context
  • A history of disobedience to court orders such as, but not limited to, Domestic Violence Protection Orders, non-molestation orders and restraining orders
Mitigating Factors
  • Positive good character – as a general principle of sentencing, a court will take account of an offender’s positive good character. However, it is recognised that one of the factors that can allow domestic abuse to continue unnoticed for lengthy periods is the ability of the perpetrator to have a public and a private face. In respect of offences committed within a domestic context, an offender’s good character in relation to conduct outside these offences should generally be of no relevance where there is a proven pattern of behaviour
  • Evidence of genuine recognition of the need for change, and evidence of obtaining help or treatment to effect that change

Will those convicted get a longer sentence?

A spokesperson for the Sentencing Council commented:

‘Overall, it is likely that there will be an increase in sentence severity as a result of the introduction of the guideline, however, the guideline emphasises the need to consider the most appropriate sentence to prevent further re-offending and protect victims, which may be a community order.’

How we can help

domestic abuse sentencing guidelineMany people feel that sentencing is increasingly a mechanistic process, with a danger that the new domestic abuse sentencing guideline will be rigidly stuck to, and the individual considerations of defendants either ignored or played down.

However, case law over the last few years emphasises that courts should be cautious to ensure that this does not happen. All of our advocates are experienced in presenting the best mitigation possible to courts, ensuring the best possible outcome.

We can advise, for example, on the best way to present your regret and remorse following a guilty plea. 

A specific case study can be found here.

If you intend to fight your case at trial then we have a proven track record of securing not guilty verdicts.  Examples can be found here and here.

We can advise on how to tackle difficult issues relating to whether  hearsay evidence should be admitted in your case.

Contact a specialist in defending domestic abuse cases

The new domestic abuse sentencing guideline mean that it may be easier in the future for courts to justify a custodial sentence.  As a result, you will want to contact us as soon as the police make contact with you.

Your nearest office can be found here.  We provide a nationwide service, 24 hours a day, 7 days a week. All advice and assistance in police interview will be free of charge to you.  Legal aid is available for many cases before the Magistrates’ and Crown Courts.

VHS Fletchers offices across the East Midlands
News

How to Discharge a Restraining Order

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

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

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

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

Is legal aid available to discharge a restraining order?

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

We also offer a competitively priced private client service.

Who makes the application to discharge the order?

The Act says that:

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

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

What are the criteria for discharge of the order?

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

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

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

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

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

How we can assist with your application

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

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

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

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

Contact

 

News

Domestic Violence Protection Notices and Orders

Domestic Violence Protection Notices and Orders

Domestic Violence Protection Notices (DVPNs) are commonly issued by police when attending incidents of alleged domestic violence.

Invariably, whatever the rights and wrongs of a situation, and frequently it is quite impossible for this to be correctly judged, it is the male who are the recipient of the Domestic Violence Protection Notices even where there are cross allegations.

The effect of Domestic Violence Protections Notices is to force the removal of recipients from the named property.  This is for an initial period of 48 hours.  This will then be followed by an application to the local Magistrates’ Court for a Domestic Violence Protections Order.  This order can result in a person’s removal from the premises for a further 28 days.

The rationale behind this process is to give the supposed victim of domestic violence the ‘breathing space’ they might need to seek assistance.

Can You Challenge a Notice?

Domestic Violence Protection Notices are issued in a relatively informal way.  Because of this, there is no realistic way to challenge them before they take effect.  As a result, any later successful challenge will only result in a mostly pyrrhic victory.

You are able, however, to challenge the application for the Domestic Violence Protection Order.  We will be able to assist you in that process.

The legal framework for Domestic Violence Protection Orders

The legal framework for these orders was recently considered by the High Court in the case of Kerr v Chief Constable of Surrey Police [2017] EWHC 2936 (Admin).

domestic violence protection noticesThe facts in this case are typical of many of the cases that we see before the courts.  The supposed beneficiary did not actively support the making of the order.  She was Mr Kerr’s partner of eight years.

The High Court upheld the legislative scheme in its entirety, observing that:

‘…within the experience of a Magistrates’ Court, that victims of domestic violence can be equivocal in their views. There are many reasons why at any given point in time they may express some reluctance to seek to exclude the partner. As [Counsel] correctly observes, that is precisely the danger that this legislation addresses by allowing a short-term emergency order to be made for the protection of a victim of domestic violence, even in circumstances where the victim is not seeking such an order.’

Is Kerr wrongly decided?

There is no case law cited in the judgement so as a result it is open to argument whether the High Court considered the recent decision of Herrington [2017] 2 Cr App R (S) 327.  In that case, where when considering whether to make a restraining order, the Court of Appeal observed:

domestic violence protection notices‘‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with.  Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.

It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself.  The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make.

Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained.  She told them unambiguously that she wants this order revoked.’

How Can We Assist?

When new judgements come along, they are often presented as offering the complete answer to a legal problem.  In our experience, they seldom do.  Consideration  has to be had to earlier decisions, particularly ones that had not considered in any new case.

Because of this, where appropriate, we will be more than happy to challenge such cases.  We can advance alternative arguments where there is a legal basis to do so.

If you are facing the prospect of a Domestic Violence Protection Order following service of a Domestic Violence Protection Notice please contact one of our expert criminal law solicitors.

You can find your nearest office here.

domestic violence protection notices and orders

Alternatively you can use the contact form below.

Contact

 

 

 

 

News

Domestic Violence Trial in Mansfield – Not Guilty

domestic violence trial mansfield crime solicitor tim haines
Mansfield criminal defence solicitor Tim Haines

Mansfield crime solicitor Tim Haines recently used all of his experience to secure a not guilty verdict in a domestic violence trial.  The case required sensitivity  and a clear trial strategy.

During an acrimonious relationship breakdown, Tim’s client was charged with an allegation of common assault.  He was said to have slapped his son in the presence of his estranged wife.

In interview and thereafter, Tim’s client always maintained his innocence.  He claimed that it was a false allegation designed to make sure he had to leave the matrimonial home.

Special Measures for Child Witness in Domestic Violence Trial

Tim knew that this had the potential to be an emotive trial.  Special Measures were granted to help the young witness give his best evidence.  This meant that he appeared in court over a video link. Although it was a distressing experience for him, Tim had to ask him questions about the incident to test whether witnesses were telling the truth.

Our client’s wife then gave evidence about the incident.

She was followed by Tim’s client who gave evidence on his own behalf along with a character witness.

Tim was then able to address the Magistrates’ as to the evidence in the case.  His client had been consistent in his account to both the police and the court, and was helped by the evidence of good character that he was able to provide.

Not Guilty Verdict and No Restraining Order

domestic violence trial mansfield criminal defence solicitors
Mansfield Magistrates’ Court

On the other hand, there were inconsistencies in the evidence of the young witness and our client’s wife that were significant and not easy to explain away.

As a result, after full deliberation, the Magistrates’ were not persuaded that the prosecution had proved the case to the criminal standard of proof.  They were not sure that Tim’s client had assaulted the child so was found ‘not guilty’.

Contact a Criminal Defence Solicitor in Mansfield

Allegations of domestic violence are treated seriously by the courts.  They also need handling with sensitivity.  The law can be complex, particularly where the prosecution do not seek to rely on the complainant’s evidence.

As a result, if you are arrested or know that the police wish to speak to you about an offence of domestic violence 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.

defending domestic violence cases

Tim Haines can be contacted on 01623 675816 or by using the form below.

Contact

 

 

News

Chesterfield Magistrates’ Court Trial Win

chesterfield criminal solicitor
Chesterfield Solicitor David Gittins

Chesterfield Crime solicitor David Gittins was recently instructed  by a client who faced an allegation of assault in a domestic setting.  The case was heard before Chesterfield Magistrates’ Court.

The case called for thorough and diligent preparation.  This included the development of a complex legal argument at a very late stage.  The argument resulted in the prosecution choosing not to pursue the case further.  David’s client had the benefit of a not guilty verdict.

We had represented our client during the investigation stage and David conducted the case before the Magistrates’ Court.

The Allegation

In November 2016 the David’s client was at his home address with his then partner.  An argument began which lasted several hours began. During the argument our client was said to have headbutted the complainant on 3 occasions and tried to bite her to the neck.

David’s client left the address and the police were called immediately by the complainant.  She had a visible injury to her head.

Full Account in Interview

When spoken to by the police, our client accepted that he had been present but had a different version of events.  He said that upon telling his partner during the argument that he was going to leave the property and see a friend the complainant attacked him.  She pushed her head into his, and our client had to push her away so he could leave.

chesterfield crime solicitor
Chesterfield Police Station Representative Rob Lowe

He was again prevented from leaving by being pulled backwards.  Our client again pushed her away fearing a further attack. He said he acted in reasonable self defence and he was in fact the victim.

This account was given in police interview when he was represented by accredited police station representative Rob Lowe.

The Trial

There were no other witnesses to the incident, so David set out to locate information gathered during the police investigation that would strengthen his client’s case.

David obtained a copy of the photograph taken of his client on arrest.  This and the custody record showed that he had no markings to his face supporting the idea that he had headbutted his partner.

Bad Character Evidence

Additionally, David attempted to secure information relating to an earlier incident from August 2016 when his client had called the police alleging that he had been assaulted.  Secondly David wrote to the CPS asking for information about an incident from August 2016 when the Defendant had called the Police alleging that the complainant in this matter had assaulted him.  This might support his client’s account in this case.

 

chesterfield magistrates' court
Chesterfield Magistrates’ Court

This information arrived very late.  This meant that David had to immediately draft an application for his bad character evidence to go before the trial court.  Although the prosecution responded, the response was supplied late and did not contain all of the information that it should.  The hearing was adjourned to the morning of the trial.

The additional information served was previous court decisions.  In fact, they did not help the prosecution.  David addressed the court on the application and this case law.  The court ruled in his client’s favour.  As a result, David was able to ask the complainant about this earlier incident.

Perhaps knowing that David’s client was in the right, the complainant did not attend court for the trial at Chesterfield Magistrates’ Court.  Although the prosecution could have applied to adjourn the case, the work that David had done persuaded them not make the application.  No evidence was offered and he was found not guilty.

Client Feedback

 

David’s client was very pleased, with this outcome, and after the hearing took the time to send David an email thanking him “for everything and the support you’ve provided in the case.”

Funding

David’s client did not have the benefit of legal aid for his case before Chesterfield Magistrates’ Court.  This was because his income was too high.  He therefore instructed David on a private basis. David gave a realistic and affordable quote from the outset with the Client being kept informed throughout by email, phone and office appointments.

At the conclusion of the David was successful in securing a Defendant’s Costs Order meaning that David’s bill would be paid out of Central Funds by the government and cost the Defendant nothing.

Contact David Gittins for Chesterfield Magistrates’ Court

Should you wish to contact Chesterfield crime solicitor David Gittins, please telephone him at our Chesterfield office 01246 283000 or email her here.

News

Chesterfield Criminal Defence Solicitor Secures Suspended Sentence

chesterfield criminal defence solicitor
Chesterfield Crime Solicitor Serena Simpson

Chesterfield criminal defence solicitor Serena Simpson recently defended a client before Chesterfield Magistrates Court.  The charges were allegations of domestic violence directed to a former partner.

The offences included an allegation of assault occasioning actual bodily harm (ABH) where she had stabbed the victim to the arm and chest with a knife. In addition it was alleged that Serena’s client had followed the male and further assaulted him by punching him to the face.

Serena first met her client when she had been refused bail by the police.  She was detained in the cells to be put before the court for a remand to prison custody.

On meeting the client, Serena immediately realised that she was a vulnerable adult herself.  She provided a history of domestic violence directed against her by the complainant in this case.

Offence on Bail

Serena’s client admitted that due to this prolonged abuse she had picked up a knife and stabbed her violent partner.  She had then turned herself in to the police.  She accepted that while on police bail she had seen the victim.  Although he had followed her, she had slapped him to the face.  There was a further minor public order offence that was denied.

The Prosecution suggested an alternative version in respect of the second allegation.  It was claimed that Serena’s client had followed the victim and punched him rather than slapped him.

Newton Hearing Listed

chesterfield criminal defence solicitor
Chesterfield Magistrates’ Court

Serena’s client pleaded guilty to both assaults.  As she disputed the extent of the allegations she put forward her account in a written ‘basis of plea’.  Her account was not accepted by the prosecution.  As the Court felt it would make a real difference to sentence the case was listed for a hearing to decide whether our client’s version of events was correct. This is a trial of issue or a ‘Newton Hearing’.

Serena successfully argued for bail for her client.  She then undertook the preparation for the contested hearing.  It became clear as the hearing the ex-partner did not want to attend court and give evidence.

Serena was keen to bring the case to an end as soon as possible as from meeting with her client it was clear that the ordeal of court proceedings was having an adverse effect on her.

Active Case Management

The case was listed for a case progression hearing at Serena’s request to ascertain whether the hearing was going to be effective in due course.  The prosecution was unable to make a decision until a week before the trial when it confirmed that a hearing was no longer sought and Serena’s client could be sentenced on her version of events.  Further, the public order allegation was dropped.

The case was not yet over, however.  Serena had to prepare for a difficult sentencing hearing as whatever the background her client had still admitted stabbing her ex-partner.

Starting Point of 18 Months?

Sentencing guidelines govern an allegation of ABH.  The prosecution argued that this case fell into the most serious band, and the starting point for any sentence ought to be 18 months imprisonment within a range of 1 to 3 years. Her case was likely to be committed to the Crown Court for sentence even with discount for plea.

Suspended Sentence

Serena provided mitigation to the court outlining the history of the relationship, including the violence directed at her client, and other elements of personal mitigation.  Serena persuaded the District Judge that the case did not fall into the top level of seriousness.  As a result, Serena’s client was able to receive a sentence of 16 weeks suspended for 2 years with a rehabilitation element.

The Judge made it clear that Serena’s mitigation had persuaded him to take this unusual course of action in a case involving knife crime.

Serena’s client was understandably delighted.

Legal Aid Funding

Our client had the benefit of legal aid.  This allowed her to instruct Chesterfield criminal defence solicitor Serena Simpson.  This advice and representation was free of charge to her.  Further information about funding can be found here.

Contact a Chesterfield Criminal Defence Solicitor

If you are investigated by the police or are at court you may wish to instruct Chesterfield criminal defence solicitors VHS Fletchers. Please telephone us at our Chesterfield office 01246 283000 or use the contact form below.

Contact

News

Acquittal of Domestic Violence Allegation

Mansfield criminal solicitor Melanie Hoffman recently represented a client at a trial for allegations of domestic violence before Mansfield Magistrates’ Court.  He faced charges of assaulting both his his estranged wife and teenage daughter during a visit to the former matrimonial home.

In police interview Mel’s client had answered questions, raising self defence on both counts without the benefit of legal advice. This account was maintained at his first Magistrates’ Court appearance and he entered not guilty pleas.

Pressure from the Bench

Mansfield crime solicitor domestic violence acquittal
Mansfield Magistrates’ Court

These pleas were entered despite pressure being applied by the court in the form of an indication that custody would be the likely outcome in the event of conviction after trial.  Alternatively, there was mention of a community order following an early guilty plea.

Mel’s client did not give in to this pressure, maintaining his instructions.  As a result, Mel began her detailed trial preparation.  This thorough examination of the statements highlighted a number of inconsistencies in the prosecution written witness statements and video interviews.  This preparation allowed the careful editing of the video to ensure that information that was not relevant to the trial issue and would prejudice her client was removed.

Special Measure for Witnesses in Domestic Violence

At trial, Mel pursued a line of sensitive but meticulous cross-examination of both ex-wife and child witness.  The former had the benefit of being screened from Mel’s client, the latter was questioned across a video link.  This measures are common place in such trials.

During this questioning the inconsistencies previously noted by Mel during her case preparation began to emerge.

Mel’s client gave evidence on his own behalf.  This was consistent with the explanation that he had given to the police in interview several months before.

Detailed Closing Speech

In her closing speech, Mel’s grasp of the case allowed her to take the Magistrates through the detail of the case, highlighting what she believed amounted to significant inconsistencies between the accounts of the prosecution witnesses.  This was usefully contrasted with the consistent account given by her client.  Mel also reminded the Magistrates that they would have to take into account her client’s good character, relevant to whether he was telling the truth and likely to have committed the offences.

She submitted that this combination of factors meant that the prosecution had not made the Magistrates sure of her client’s guilt. The Magistrates agreed with Mel’s representations and found her client not guilty of both charges.  In their reasons they explained that owing to the inconsistencies high-lighted by Mel they weren’t sure that the defendant had acted in the manner alleged.

Restraining Order Refused

Unfortunately, there is now the opportunity for the prosecution to apply for a Restraining Order even where a person is found not guilty of all of the offences of domestic violence.  The Crown chose to make such an application here, but Mel successfully opposed this application  on the basis of the difficulties with the original evidence and the fact that there had been no suggestion of difficulties in the months between the allegation being made and trial.

Contact Melanie Hoffman

Are you at risk of losing your good name as a result of criminal allegations?  Do you face allegations of domestic violence?  If you wish to discuss a police investigation or court proceedings with Mel then please telephone her on 01623 675816 or email her here.

News

Domestic Violence Trial in Mansfield

Domestic violence cases are frequently before the court for trial.  Domestic violence is defined as any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality.

The abuse can encompass, but is not limited to:

  • psychological
  • physical
  • sexual
  • financial
  • emotional

abuse.

In many cases a client may have unrealistic expectations as to whether a witness, who he or she might still be in a relationship with, will attend court to give evidence against them.

Witnesses will often respond to a Crown request for their attendance, and of course ultimately the prosecution can ask that the witness be forced to attend.  Over the years the prosecution have resorted to the latter course of action more and more frequently, particularly in Crown Court cases. In some cases the evidence may permit the prosecution to proceed without the complainant.

If a client is sentenced for such an allegation, the court will take into account the seriousness of the assault, the stage at which admissions (if any are made), the wishes of the complainant (although these are not decisive) and the client’s attitude to the offence.

Particular sentencing considerations are set out here.

As a result, if a client is to embark upon a trial it is very important to them that they win.  In a recent case dealt with by Mansfield Solicitor Tim Haines his client faced an allegation of assault.  During an argument with his partner in the home it was said that he had pushed and shoved his partner, and taken hold of her.  The allegation was aggravated by the fact that his young child was said to have been present.

Tim’s client had always maintained that the incident had not happened and it had been fabricated by the complainant to support orders being sought in the family court.  The challenging of evidence in those terms may often be difficult, but in this case our client was helped by the fact that he was of previous good character.

This was important as it would be potential evidence that Tim’s client was less likely to have committed the offence and more likely to be telling the truth about what happened.  Rather than simply rely on this Tim chose to call two character witnesses to give evidence to the court about his client’s character, usual demeanour and in particular how he conducted himself in his relationship.

The District Judge found this a difficult case as both the alleged victim and Tim’s client were credible witnesses.  Applying the burden and standard of proof, and putting weight on our client’s good character, the Judge could not be sure that he had committed the offence and the client was found not guilty.

Tactical considerations that can only come from an experienced trial advocate such as Tim can often be key when deciding how to present a case before the courts.  This is true whether the case is a trial or a sentencing hearing.  You can be sure that Tim will be alive to all of the possible outcomes of the various strategies that can be adopted and give you the best advice in your particular case, as he did in this one.

Should you wish to discuss a case involving domestic violence with Tim then please make an appointment to see him at our Mansfield office by telephoning 01623 675816 or email him here.

Mansfield Domestic Violence Trial