Tag Archives: guilty

News

Motoring law solicitor secures suspended sentence.

chesterfield motoring law solicitor
Chesterfield crime and motoring law solicitor Kevin Tomlinson

Chesterfield Crime Solicitor Kevin Tomlinson has a wealth of experience defending motoring law offences.  He is known for his calm and unflappable approach which places clients at ease in what is often an alien environment for them.  These qualities are demonstrated by this particular case.

 

Kevin was instructed by a client who was accused of drink driving.  She had provided a specimen of breath showing that she was nearly three times the legal drink drive limit.

Investigation of a procedural irregularity

chesterfield motoring law solicitorOur client was prepared to plead guilty to the offence and was seeking advice as to the likely penalty she would receive.  Kevin, however, sought his client’s instructions on the full circumstances of the offending and began to check the evidence that the prosecution had.

While there was no doubt that Kevin’s client had drunk alcohol before driving, the level has to be above the legal limit to drive. in order to convict her of the offence, therefore, the prosecution had to show that the evidence of the breath specimen was reliable.

If you are investigated for drink driving and provide a sample of breath at the police station you will be given a print out of the reading provided by the machine.

In this case, the printout provided to our client showed that there had been an error. The layout of the paperwork appeared to be wrong.  Kevin could not be sure that the breath test had been performed correctly.

At court Kevin spoke with the prosecutor to see if they had the same documentation as his client.   The prosecutor did not.  Their copy of the printout was correct.  It appeared, for whatever reason, that our client’s version had been incorrectly printed.

chesterfield motoring law solicitorKevin then took the time to speak with his client again.  It seemed clear that the machine had been working properly, bearing in mind his client’s instructions about how much she had had to drink and the prosecution copy of the printout.  Further, the decision that she made on plea would be important as the starting point on sentence in her case was a twelve week custodial sentence due to the level of the reading.

Would she choose to try and take advantage of a potential loop hole and risk loss of mitigation and prison if she was found guilty?

Suspended sentence followed a guilty plea

Having taken further instructions, it was clear that our client wanted to plead guilty and not try to challenge the reliability of the machine.

Following her plea, Kevin was able to advance substantial personal mitigation on her behalf which is always more compelling if it follows a guilty plea.  Kevin’s calm and measured approach persuaded the Magistrates that any sentence of imprisonment could be suspended.  In addition to the suspended sentence she also receive the inevitable driving ban.

She was extremely relieved and pleased with the outcome.

You can read more about the importance of an early guilty plea and and an expression of remorse here.

Contact an expert motoring law solicitor

Kevin Tomlinson is based at our Chesterfield office, but is able to provide nationwide advice and representation.  If you wish to instruct Kevin then his contact details can be found here.

We will always advise you as to your entitlement to criminal legal aid to ensure your free representation in the Magistrates’ Court.

You can read more about that here.

Alternatively, if one of our other offices is more convenient then you can find these contact details here.

chesterfield motoring law solicitor

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News

New machines target drink drivers with roadside breath tests

The government has announced its intention to use new breathalysers to administer roadside breath tests.  This move could see a further 6,000 convictions per year for those who drink and drive.

roadside breath tests

Roadside breath tests followed by evidential tests

At the moment, breath test procedures are in two stages.  Those who test positive during roadside breath tests will be arrested and taken to a police station.   This is for a further test to be administered.  The second test is known as the ‘evidential test’.  It is the result of this test that forms the basis of any prosecution decision.

The gap in time between the first positive roadside breath tests and the ones administered at the police station may be significant enough to ensure that a person blows a negative reading.   This would be due to falling alcohol levels over time.  In some cases, however, the reverse can also happen.

Although the law permits ‘back calculations’ to be undertaken,  the evidence base is such that they are seldom used by the prosecution in this scenario.  As a result it has been argued that some drink drivers go free.

roadside breath tests

The legislation providing a procedure for definitive evidential roadside breath tests is already in place.  In June 2018 the government has announced a competition aimed at device manufacturers, with the aim of ensuring that suitable devices are approved and in use for roadside breath tests by 2020.

Around 460 000 breath tests are conducted each year.  Approximately 59 000 people providing a positive reading.

Approximately 6 000 people provide a positive reading at the roadside but are later found to be under the limit when tested at the police station.  This change will see those people prosecuted.

In many instances these will be people who have ‘gambled’ on a quick lunchtime drink or have not allowed quite enough time to sober up from the night before.

roadside breath tests

The changes will also reduce the scope for so-called ‘loophole defences’.  These have been made popular due to the complexities of the police station procedure. It is expected that decades of case law will become redundant once the new devices are being used.

Experience does, however, tell us that legal challenges will continue to be developed even when other avenues of law are closed to suspects and defendants.

The penalties for drink driving are severe.  There are minimum periods of disqualification.  These can be combined with high financial penalties and punishing insurance premiums for many years to come.  Prison sentences will be imposed in the most extreme cases.  As a result, many offenders face the loss of employment.

How can we assist?

Our motoring solicitors are experts in all aspects of drink and drug driving law. This is one of the most complex areas of criminal law.  Early advice should be sought to ensure that you achieve the best outcome in your case.

In some recent cases we have successfully argued a medical defence to failing to provide a specimen, argued special reasons to avoid a disqualification from driving   and conducted  a trial securing a not guilty verdict for our client facing drug driving charges.

In some case, such as this one, our clients accept that they are guilty but wish to mitigate the usual effect of a conviction, such as a disqualification.

We have expert road traffic lawyers at our six offices across the East Midlands.  Find your nearest office here.  Alternatively you can use the contact form below.

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News

New Public Order offences sentencing guidelines

On 9 May 2018 the Sentencing Council, which is the body responsible for setting sentencing guidelines in England and Wales, has published proposed new guidelines in respect to public order offences.  The consultation ends on 8 August 2018.

public order offences sentencing guideline consultation

What public order offences are covered?

The guidelines will apply to the following offences, all of which are to be found in the Public Order Act 1986:

  • Riot
  • Violent disorder
  • Affray
  • Threatening or provocation of violence and the racially or religiously aggravated counterpart offences
  • Disorderly behaviour with intent to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
  • Disorderly behaviour causing or likely to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
  • Offences relating to stirring up racial or religious hatred and hatred based on sexual orientation

When will the new guidelines come in to force?

The proposed guidelines for public order offences are being consulted upon.  As a result it is unlikely that any new guidelines will come into force before the end of this year at the earliest.

However, what we tend to see is that judges look at consultation guidelines, even when they are not supposed to.  Sentences may begin to reflect the new guideline before it is in force.  As a result it makes sense to keep a close eye on sentencing in this area of law.

What are the proposed changes?

These offences can vary greatly in their nature and in their seriousness. For example, affray, which covers the use or threats of violence which would make someone fear for their personal safety, may involve serious or sustained violence or a less serious incident where no one is injured.

The new public order offences guidelines aim to set out a clear approach to sentencing that covers the main factors that should be taken into account in assessing the culpability of the offender and the harm they caused.

For example, an offender with high culpability in the riot guideline may have used petrol bombs or firearms, been a ringleader in instigating violence or have been instrumental in escalating the level of disorder.

The guidelines also aim to encapsulate the wide-ranging harm that is caused by these offences. Individual members of the public may suffer physical injury, fear or distress.  There might be damage to their property.  Business owners may suffer loss of livelihood and damage to their premises.

Public disorder can inflict serious disruption and damage to local communities and police officers and other emergency workers may be attacked and injured. Incidents may also involve substantial costs to the public purse.

The guidelines also highlight other aggravating factors that would increase the seriousness of offences. This can include offenders inciting others to participate in violence, trying to prevent emergency services from carrying out their duties, causing injuries to police dogs or horses and using or possessing weapons.

Finally, the proposed guidelines also take into account trends in criminality and a social climate which has seen a rise in hate crime offending. The Council considered that a guideline on public order would be incomplete if it did not cover racially or religiously aggravated public order offences and those which specifically address stirring up of racial or religious hatred or hatred based on sexual orientation.

public order offences sentencing guideline consultation

Will sentences for public order offences be longer as a result?

The Sentencing Council does not anticipate that sentence severity will increase, save for a couple of exceptions concerning fines.

Data exists on the number of offenders sentenced for public order offences, and the sentences imposed.  There is, however, a lack of data on the categories of seriousness of current cases. It is therefore difficult to establish how current cases would be categorised across the levels of harm and culpability in the draft guideline.

The fear, therefore, is that these new guidelines may result in tougher sentences being imposed that will stretch an already underfunded prison service.

Read more and take part in the consultation here.

How we can assist you

If you are a suspect in a case involving a public order offence then your interview with the police will be key in terms of whether you are prosecuted or convicted of an offence.  As a result there are a number of good reasons why you ought to take our free and independent legal advice if interviewed under caution.

If you find yourself facing court proceedings and are denying the offence then we will put together the best case possible to go before the Magistrates or a jury.  Some reasons why you might wish to instruct us can be found here.

Finally, in cases where you wish to plead guilty then we will assist the court in placing your case properly within any guidelines and ensure that all mitigating features are placed before the sentencing court.  Again, some of the relevant considerations for sentence can be found here.

Please contact your nearest office for further advice

or alternatively use the contact form below

public order offences

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News

The Psychoactive Substances Act 2016 – no laughing matter?

psychoactive substances act 2016‘Laughing gas’ is more properly known as Nitrous Oxide.  It was recently back in the news following a Court of Appeal ruling that the substance is controlled by the Psychoactive Substances Act 2016.

The Act makes it an offence to possess psychoactive substances with intent to supply.  In a certain number of limited cases, just possession a psychoactive substance alone is also an offence.

The appeals came about because of some cases reported in August 2017.  In those case, Judges had ruled that laughing gas remained exempt from control under the Act.

The issue for the appeal was whether Nitrous Oxide was a ‘medicinal product’.  If it was, then the offence could not have been committed.

In the four cases before the Court of Appeal, two appellants had been convicted after trial.  The remaining two had pleaded guilty.

Following the hearing of the appeals the court ruled:

‘We are satisfied that in the circumstances of these cases the nitrous oxide in question could not be categorised as a medicinal product and therefore was not an exempted substance. In our judgment, the matter is clear on existing authority.’

So, is the matter settled?

The key words in the judgment are ‘…in the circumstances of these cases.’

psychoactive substances act 2016
The Court of Appeal

So, to answer this question you need to understand a little more about the purposes of the Psychoactive Substances Act 2016. The Act applies to substances by reference to their effects.  As a result there isn’t a list made up of substances and their individual chemical composition.  The law is drafted to only criminalise their supply for the purpose of recreational drugs.

The argument has been put that because Nitrous Oxide is undoubtedly used for medical purposes, it would fall squarely within the medicinal products exemption in the Psychoactive Substances Act 2016.

The prosecution must prove an important ingredient of the offence.  This is that any defendant in question intended to supply the substance for consumption for its psychoactive effects rather than for medicinal purposes.

As a result, liability under the Psychoactive Substances Act 2016 does not depend solely on the chemical composition or the effect of the substance, but also on the intent of the person possessing it.

In one of the appeals, the court held:

‘…the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.’

This case by case approach entails the possibility that different products with precisely the same chemical composition may fall within or outside the definition of medicinal product.  This will depend on the circumstances of the individual case before the court.

Seek expert criminal advice if you are investigated for offences under the Psychoactive Substances Act 2016

These cases illustrate how complex the criminal law can be.  Headlines in newspapers or online can be confusing, particularly when even the courts can come to different conclusions on the same set of facts.  In cases such as this there will be differences of scientific opinion.  It also takes some time for an appeal court to clarify the law.

In relation to Nitrous Oxide, it may be that further appeals will follow which may again alter the interpretation of the law.

If you are being investigated for any drug allegation then you will want expert advice from a criminal law specialist who is up to date with the current law.  Please contact your nearest office to discuss your case.

psychoactive substances act 2016
VHS Fletchers crime and regulatory solicitors offices across the East Midlands

Our independent advice and assistance in a police interview under caution will always be free of charge to you, whether you are under arrest or being interviewed voluntarily, whether you are in a police station or at your home address.

You can find a number of other reasons why you should seek our legal advice here.

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News

Rape Juries Reach Guilty Verdicts Before Deliberation

Majority of rape case juries reach guilty verdict before deliberation

Nearly half of all juries in rape cases come to a guilty verdict before they retire to the jury room to deliberate, research shows.

The study found that 43 per cent of jurors came to their decision in advance, with the figure as high as 83 per cent if they themselves had been the victim of a sexual assault. However, the jury room deliberations did have an impact, with 13 per cent changing their minds after discussion with fellow jurors.

The research also showed that a juror’s educational background had significant implications for verdicts. Those who never made it to degree level were more likely to vote “not guilty” because of an increased tendency to hold more sexually aggressive attitudes.

Mock rape trials used in study

rape trials not guilty jury

The study was conducted by the University of Huddersfield with legal advice and support from St Johns Buildings, the Manchester barristers’ chambers, using mock trials. The findings may increase calls for jurors in the UK to be screened for pre-conceived bias before being selected, particularly in rape trials, the researchers said.

Ministry of Justice statistics from 2015 reveal that just 1,297 convictions of sexual offences were secured, representing less than four per cent of all cases recorded by police over the 12 months.

Dominic Willmott, a researcher at Huddersfield University and lecturer in forensic psychology at Leeds Trinity University, said that the research demonstrated “that for all the best efforts of the courts, juries are not necessarily offering a fair and impartial assessment of the evidence, particularly within rape cases.

Demographic and  personal attitudes key

“Past experiences play a huge role in shaping the person you are, and inevitably affects your view on society. As well as the importance of demographic features of the jurors, attitudes towards rape were found to be the strongest predictor of high numbers of not guilty verdicts.”

Nigel Booth, a barrister at St John’s Buildings, played the role of the judge, with other barristers acting for the prosecution and defence.

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