Tag Archives: magistrates

News

Cross allegations lead to common assault charges being discontinued

Nottingham criminal defence solicitor Nick Walsh recently represented a client who was in her sixties and of good character.  She was charged with an assault by beating.  The alleged victim was her neighbour, a male in his twenties.  Cross allegations were made.

Neighbour dispute with a history of complaints

The background to the allegation was a history of complaints being made to the police by both parties.  On this occasion it was alleged by the neighbour that he had been walking past our client’s address.  As he did so she had shouted abuse from her window.  She called him over to her window.  When he approached and asked what she wanted it was said that she punched him in the face causing injury.

Free and independent legal advice in police interview

Nick’s client sought our free and independent advice in police  interview.  Having taken that advice she chose to answer questions.  She admitted hitting her neighbour.  Our client maintained, however, that this was because he had approached her, both drunk and abusive, and she thought that he was going to hit her.

She then went on to tell the police about an incident that had taken place the following week.  His behaviour had been similar, but fortunately another neighbour had intervened to protect her.

Despite these denials, her age and lack of convictions, the police chose to charge our client.  As is often the case the police failed to investigate the allegations that our client made about the complainant.

Nick’s client appeared at Nottingham Magistrates’ Court.  She entered a not guilty plea and the case was adjourned for trial.  In the meantime Nick traced the neighbour who had assisted during the second incident.

Cross allegations investigated with our help

As a result Nick advised his client to make a further  complaint to the police.  He helped her in making contact with the police and reminded them of their duty to investigate her complaint.  As a result the police were finally persuaded to interview the neighbour in relation to the second incident.  Bearing in mind this allegation was supported by an independent witness, the complainant was charged and became a defendant in these separate proceedings.

Successful written advocacy

cross allegationsPrior to trial Nick was able to make representations to the Crown Prosecution Service.  He argued that the second incident was very important.  It left the credibility of the complainant in ruins.  The prosecution accepted that he had behaved as described in the second incident.  Nick’s client’s defence was that he had behaved the same way a week before.  As a result, he suggested that there was no longer a reasonable prospect of conviction.

The prosecution accepted this argument and discontinued the prosecution of our client.

Instruct a Nottingham Criminal Defence Solicitor

If you face charges before the court you will want to instruct an expert defence solicitor who is alive to the possibilities of written advocacy as well as the usual advocacy involving speaking in court.

Although this was a case where there may well have been a successful outcome at trial, we know that the sooner a case can be resolved in a client’s favour, the better for them.  As a result, rather than wait for the trial date, Nick ensured that the prosecution had no alternative but to discontinue the case once the cross allegations were made.

You can contact our Nottingham office on 0115 9599550 24 hours a day, 7 days a week, for emergency free and independent advice and representation in the police station.  Alternatively, contact us during office hours to make an appointment to see on of our solicitors.

There is also a contact form that you can use below.

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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).

The 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:

‘‘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.

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News

Chesterfield solicitor mitigates in drink drive case

With Christmas fast approaching the yearly anti-drink driving campaigns will soon be splashed across TV, Radio and Social Media.  You can find more information about that here, but we simply repeat the advice relating to drink drive:

  • the easiest way to avoid problems is not to take any alcohol before you drive
  • be very careful the next morning and consider public transport if you have been drinking the night before.

We know, despite people being aware of the advice.  people still make mistakes.  In most cases this involves a momentary lapse in judgement from a person who has never been in trouble with the police before.  A conviction for drink driving can have a serious impact on an individual and have a very real effect on their life.

We will  try our best to minimise this impact where possible.  This might be by fighting the allegation at trial or putting forward effective mitigation on sentence.

Chesterfield Criminal Solicitor David Gittins is regularly before Chesterfield Magistrates Court representing his clients in such cases.  He  was recently instructed by a client who had been involved in an accident whilst drink driving.  As a result he faced a custodial sentence. Due to David’s assistance his client was able to avoid a prison sentence.

The Allegation

David’s client had been charged with drink driving following a road traffic incident.  She had driven into the rear of a vehicle before driving off.  She was followed home by a member of the public who had realised she was drunk.  As a result the police were called.

David’s client had very little recollection of the incident.  In police interview she accepted the evidence and because of this made admissions in interview.

She was found to have been just below three times the legal limit to drive.  Being aware of the position she had placed herself in, she chose to instruct David before here first court appearance.  As a result, David was able to give early advice and prepare the case in time for the hearing.  Part of that advice was to remind his client that there would be credit for an early guilty plea.  This is a reduction in the final sentence imposed.

Our client was a mother holding down two jobs to provide for her family.  As a result, she was understandably upset about the risk of a prison sentence.

The Sentence

Following his client’s guilty plea to drink driving, David mitigated on her behalf.  He was able to focus on the positive elements of his client’s character and future.  Although an immediate prison sentence was a possibility, David argued that these positive aspects of mitigation meant that she could retain her liberty.

David’s client was received a Suspended Sentence Order for this drink drive offence because of this mitigation.  This meant that provided she adhered to a curfew and undertook unpaid work in the community she would not be sent to prison.  She also received the mandatory disqualification from driving.

Free legal aid in the Magistrates’ Court for this drink drive case

legal aid solicitor for drink drive caseDue to the serious nature of this case and the real risk of prison and therefore loss of livelihood, free Magistrates’ Court legal aid was available.   for the Defendant meaning all of David’s representation was free of charge.

Instruct a Chesterfield Motoring Law expert

Whether you face a police investigation for a road traffic offence or have court proceedings pending you will wish to instruct an expert motoring law solicitor.  Please contact David at our Chesterfield office on 01246 283000.

legal aid solicitor for drink drive case

Alternatively, you can contact a solicitor at one of out other five offices across the East Midlands or use the contact form below.

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News

Chesterfield criminal defence solicitor Denney Lau’s first 7 days with VHS Fletchers

New recruit, Chesterfield Criminal defence solicitor Denney Lau, has hit the ground running in his first seven days at VHS Fletchers.  His caseload perhaps illustrates the varied and unexpected nature of an experienced criminal law specialist.

chesterfield crime solicitor denney lau
Chesterfield criminal defence solicitor Denney Lau

Day 1

On day 1 Denney represented three clients before Chesterfield Magistrates’ Court.  All three had the benefit of criminal legal aid.

The first client denied possession of bladed article.  The case was suitable for summary trial and a trial has been listed at Chesterfield Magistrates’ Court.  A second client faced an allegation of theft.  It was inappropriate to make progress so Denney successfully argued for an adjournment.

The final client of the day faced allegation of attempted robbery and possession of a bladed article.  This was a case that could only be dealt with at the Crown Court, so the case was sent there.  His client remained on bail.

Day 2

Day two say Denney again at Chesterfield Magistrates’ Court.  He dealt with two clients under the legal aid scheme.  One defendant pleaded guilty to breaching a restraining order and was fined.  A second was in breach of a community order and received a similar financial penalty.

Denney also represented a client under the Chesterfield court duty solicitor scheme.  He face a charge of harassment.  A not guilty plea was entered so the case adjourned for trial.  Denney is awaiting further instructions

Day 3

Once again Denney was representing a client before Chesterfield Magistrates’ Court.  This time his client was facing allegations of burglary and possession of a bladed article.  The allegations were denied and therefore were allocated to Derby Crown Court for trial.  His client remained on bail.  Representation was given under criminal legal aid

Day 4

Denney represented a client in custody under the legal aid scheme.  He was in breach of both a restraining order and his previous community order.  He had, unfortunately, run out of chances so received a fourteen week sentence.

Separately Denney dealt with a client as duty solicitor.  This client had unpaid fines dating back to 2010 so was at risk of being sent to prison for default.  Instead, Denney secured him a further opportunity to pay under a suspended committal order.

Day 5

chesterfield criminal defence solicitor denney lau dwp interviewAvoiding court in the morning, Denney instead provided advice and assistance under a fixed fee arrangement to a suspect being interviewed by the Department of Works and Pensions on suspicion of benefit fraud.  No decision was made as to whether to prosecute.

In the afternoon, Denney was representing a client before Sheffield Magistrates’ Court who was denying a serious sexual offence.  The case was allocated to Sheffield Crown Court.  His client had the benefit of both legal aid and bail.

Day 6

An application to adjourn a dishonesty offence was made and granted before the Magistrates.  A legal aid application was submitted.

A new client was seen in the office facing an allegation of excess alcohol.  Legal representation at the future court date was possible because of an affordable fixed fee.

That evening Denney undertook his first period on call and dealt with three cases during the night at Chesterfield police station.  Two clients facing investigation for a serious sexual offence and possession of drugs with intent to supply were released under investigations so that the police could conclude their enquiries.

A third client was charged to Chesterfield Magistrates’ Court following admissions to an assault on paramedics.

Chesterfield police station

Day 7

The day started with a meeting at the Derbyshire Law Centre in Chesterfield.  Chesterfield crime solicitor Ben Strelley also attended.  It was an important opportunity to discuss the legal services offered by both us and the Law Centre to ensure that our clients have the opportunity to access legal advice for all of their problems.

chesterfield criminal legal aid solicitorThereafter, Denney has another busy day at Chesterfield Magistrates’ Court.  He dealt with a defendant as court duty solicitor who pleaded guilty to having a dog that was dangerously out of control.  A basis of plea was put forward that was not accepted by the prosecution so a trial of issue of Newton hearing was listed.  Denney awaits further instructions.

He concluded a case by way of a conditional discharge for a client in possession of the controlled substance, Mamba.

A second client had committed a new offence of criminal damage while subject to a suspended sentence.  Despite that the order was allowed to continue and he was given unpaid work for the new offence.

Finally, Denney made representations on behalf of a client that persuaded the probation service to withdraw proceedings for breach of a suspended sentence order.

Contact Chesterfield criminal defence solicitor Denney Lau

Chesterfield criminal defence solicitor Denney Lau

Although you can see that Denney is busy, he is never too busy to take your call and represent you in police interview or at court.

We know that Denney’s clients will expect him to see their cases through to the end.  As a result, he will aim to provide continuity of representation all the way through to your Crown Court trial.

Chesterfield criminal defence solicitor Denney Lau can be contacted on 01246 283000 or you can use the contact form below.

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News

Have car will travel – nationwide criminal advice and representation

VHS Fletchers Solicitors have six offices across the East Midlands, staffed with specialists in the field of Criminal Defence work. Whilst it will come as no surprise that these locations are situated close to local Police Stations and Courts, the team at VHS Fletchers will happily travel much further to give nationwide criminal advice and representation to our client’s accused of criminal acts.

nationwide criminal advice and representation
VHS Fletchers offices across the East Midlands

Within the last few months staff from our Chesterfield office have had many early mornings and late nights travelling the length and breadth of the country to provide our clients with the expert legal advice that they have come to expect.

We travel to give nationwide criminal advice and representation

Those places recently visited by the staff from our Chesterfield office include:

  • Grimsby Police Station
  • Harrogate Police Station
  • South Sefton (Liverpool) Magistrates’ Court
  • Newport Magistrates’ Court
  • South Shields Magistrates’ Court
  • Grimsby Magistrates’ Court
  • Leeds Magistrates’ Court
  • Norwich Magistrates’ Court
  • Sheffield Magistrates’ Court

All of our Clients involved in these cases had links to the Chesterfield area.  They firstly wanted a solicitor local to them rather than to the police station or court they had to attend.  They also didn’t want a solicitor or other representative that they did not know or trust.

As such they asked whether a member of our Chesterfield criminal defence team would be prepared to travel and provide them with  expert legal advice about their cases.  We were only to happy to do so.  These clients faced a range of offences including assault, escaping from lawful custody, possession of offensive weapons or road traffic offences.

Here is a post relating to advice and assistance given by accredited police station representative Rob Lowe at Skegness police station.

Nearly forgot, police station advice is free

nationwide criminal advice and representationAs we have a contract with the government to provide criminal legal aid advice and representation then our advice in the police station will always be free of charge to you.

Many of our clients will be entitled to legal aid in the Magistrates’ Court.  Nearly all will be eligible for Crown Court legal aid.

Instruct a firm to go that extra mile

nationwide criminal advice and representationYou may choose your solicitor by reputation.  You might want to choose a solicitor with an office near to where you live, no matter where your case will be heard.

If you require the assistance of a firm of expert criminal defence solicitors who are more than happy to travel to provide you with nationwide criminal advice and representation, then look no further than VHS Fletchers.

We will go that extra mile (or if need be the hundreds of extra miles) needed to ensure that you get the best outcome possible.  Please contact our Chesterfield Office day or night, 365 days a year on 01246 283000.  Alternatively you can use the form below.

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News

Removal from the Sex Offender Register

Notification Requirements and the Sex Offender Register

How to Be Removed From The List

What is the ‘Sex Offender Register’?

Despite its name, there isn’t an actual sex offender register.  The phrase refers to the notification requirements imposed upon those offenders convicted of sexual offences. Over 50,000 individuals are currently subject to these notification requirements.

The duration of the notification obligation depends on the sentence received by an individual and the age of the offender. Below is a list of the relevant periods for adult offenders:

sex offender register notification requirements

What are the notification requirements?

The notification requirements imposed are complex.  They mainly involve keeping the police informed of your residence and any travel plans.  The police also require notification of changes to your personal details such as a change of name.  They will want to know whether a person is residing in a household with a child.  Bank and credit card details as well as passport/identity documents will need to be disclosed.

It may be that following sentence you do not understand your full obligations under the notification requirements.  If so, please contact us immediately so that we can give you specific advice.

What happens if I do not abide by the notification requirements?

It is important that you fully understand your obligations.  Non-compliance is likely to be a criminal offence.  You can be punished by up to 5 years imprisonment. Any breach is always treated seriously by a court.

Indefinite notification on the sex offender register

It can be seen from the table above that some offenders are subject to the notification regime for an indefinite period. When the regime was first introduced that meant that a person would be subject to the requirement for life.  A court judgment in 2012 changed that.

This change in the law now means that some offenders can apply to have indefinite notification requirements removed.

The law only changed, whoever, in relation to those with an indefinite period of registration.  If you are subject to notification requirements for a fixed term you are unable to apply to have them reduced or removed.

When can I make that application?

The timing of any application will depend upon your age at the time of the offence:

  • an adult can apply after 15 years
  • a juvenile can apply after years.

If you are also subject to a Sexual Offences Prevention Order that must be removed before an application can be made in respect to notification requirements.  Again, we will be able to advise and assist you in relation to this part of the procedure.

How do I go about doing that?

There is a 2-stage process.

Firstly you must make your application to the police. If that application is refused then the decision can be subject to appeal before the Magistrates’ Court.

Do the police always refuse these requests?

Although your initial feeling might be that they do,  in our experience this is not the case. Some police forces have reported an initial success rate in some two thirds of applications to be removed from the sex offender register.

It is not, however, a straightforward matter.  A simple letter to the police asking for the requirements to be lifted is unlikely to succeed. In considering your application, the police have to apply a statutory test.  As a result it is vital that your application is drafted professionally to give you the best chance of success.

When they determine an application, the police must—

(1) have regard to information (if any) received from a responsible body;

(2) consider the risk of sexual harm posed by the offender and the effect of a continuation of the indefinite notification requirements on the offender; and

(3) take into account the matters listed below:

(a) the seriousness of the initial offence;

(b) the period of time which has elapsed since the offender committed the offence (or other offences);

(c) where the offender falls within section 81(1) of the 2003 Act, whether the offender committed any offence under section 3 of the Sex Offenders Act 1997;

(d) whether the offender has committed any offence under section 91 of the Act;

(e) the age of the offender at the qualifying date or further qualifying date;

(f) the age of the offender at the time the offence was committed;

(g) the age of any person who was a victim of any such offence (where applicable) and the difference in age between the victim and the offender at the time the offence was committed;

(h) any assessment of the risk posed by the offender which has been made by a responsible body under the arrangements for managing and assessing risk established under section 325 of the Criminal Justice Act 2003;

(i) any submission or evidence from a victim of the offence giving rise to the indefinite notification requirements;

(j) any convictions or findings made by a court (including by a court in Scotland, Northern Ireland or countries outside the United Kingdom) in respect of the offender for any offence listed in Schedule 3 other than the one referred to in paragraph (a);

(k) any caution which the offender has received for an offence (including for an offence in Northern Ireland or countries outside the United Kingdom) which is listed in Schedule 3;

(l) any convictions or findings made by a court in Scotland, Northern Ireland or countries outside the United Kingdom in respect of the offender for any offence listed in Schedule 5 where the behaviour of the offender since the date of such conviction or finding indicates a risk of sexual harm;

(m) any other submission or evidence of the risk of sexual harm posed by the offender;

(n) any evidence presented by or on behalf of the offender which demonstrates that the offender does not pose a risk of sexual harm;

and

(o) any other matter which the relevant chief officer of police considers to be appropriate.

How can we assist in your application?

You will appreciate from the list of considerations that the appeal process is complex and will require a detailed application from you.

We can assist you in collating the material necessary to draft and submit an application.  This will ensure that any application you make has the best chance of success.  This will be true whether it is considered by the police or before a court.

Contact a specialist criminal solicitor

We have a number of solicitors who will be able to assist you with any query or application relating to the sex offender register.  Please find information about your nearest office here.  Our team provide nationwide advice and representation, so if it is difficult for you to make an appointment then please contact is using the form below and we can contact you to discuss how best to progress your case.

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News

Training on the role of the criminal defence solicitor in Derby

On Friday 6 October Derby criminal law solicitor Nick Wright gave a presentation to the Magistrates’ Association at Derby Magistrates’ Court.

Derby magistrates' court training
Derby crime solicitors Andy Cash (l) and Nick Wright (r)

This was at the invitation of Barbara Richardson, Chair of the Bench, and Chris Walker who is in charge of training.  Nick was joined by fellow local solicitor Andy Cash.  Andy gave his presentation about client issues relating to legal aid and other funding.

Nick relied upon his years of experience to give an insight into the role of the defence solicitor at the police station and at court.  He also helped the Magistrates understand the work that goes into the preparation of a case before it is presented in court.  He also brought Magistrates up to date with the current situation in relation to he potential for further criminal legal aid cuts.

The event was well attended by fifty or so local Justices of the Peace from East Midlands courts.  Feedback suggested that the presentation was much appreciated.  Over the two and a half hours Nick and Andy were able to answer many questions and hopefully provide a better understanding of defence work.

We are pleased to be able to continue a long tradition of providing such training to the Magistrates when asked.  Nottingham partners Nick Walsh and Andrew Wesley have both helped with similar events in Nottingham over the years.

Contact a criminal law specialist

It may make sense for you to instruct a criminal solicitor who trains the very Magistrates who will be making a decision about your case.  If you have court proceedings before Derby Magistrates’ Court then please do not hesitate to call Nick on 01332 546818 or use the contact form below.

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News

Res Gestae evidence – does the prosecution need a complainant?

res gestae derby legal aid solicitor vhs fletchers
Derby criminal law specialist John Young

Derby criminal lawyer John Young has been instructed in cases involving allegations of domestic violence.  The complainants in the cases have not supported the prosecution.  This was indicated at a very early stage.  None of the witnesses made statements when the police were investigating the allegations.  The prosecution try to rely on res gestae evidence.

As a result, the prosecution has sought to rely entirely on hearsay evidence.  In particular, the res gestae exception as preserved by Section 11(4) Criminal Justice Act 2003 has been relied upon.

The test for admitting res gestae evidence

Evidence amounts to res gestae when “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”.

This principle has been developed in subsequent case law.  As a result the following points have been established which the court should consider in deciding whether to allow a Prosecution application to admit the evidence:

  • Ultimately, the Court has to determine whether the possibility of concoction or distortion can be disregarded;
  • The court will need to look at the particular circumstances in which the relevant statement has been made.
  • It must be satisfied that that the event was so unusual, startling or dramatic that it was the predominant thought of the witness. Their statement was an instinctive reaction so there was no real opportunity for reasoned reflection.
  • The statement must be closely associated with the relevant event.  The court must be sure that the event was still operating to effect the mind of the witness when the statement was made.
  • Does the case have particularly features which relate directly to the possibility of concoction or distortion.  This might include evidence of fabrication. The court must be satisfied that there was no such possibility of concoction or distortion.

Any issues such as mistakes in the account given are not matters relevant to admissibility of the evidence but factors the court will consider in deciding what weight to give to such evidence.

There is clear case law that the prosecution should not make an application to admit res gestae to circumvent other statutory hearsay provisions.

What evidential matters will the court look at?

The issue of the timing of the statement will be key to any application.  These will include

  • when the victim called the police
  • how soon after the incident the victim gave the account said to be res gestae

These are not the only factors that the Court should consider however.   The Court will also need to look at

  • whether there is any supporting evidence for example visible injuries
  • the victim’s demeanour when first witnesses attend
  • their subsequent words and behaviour
  • is there an accurate transcription of recorded evidence such as 999 calls, police bodycam footage or CCTV evidence
  • where the victim has made more than one statement, the accuracy and consistency of those statements will need careful consideration
  • If there has been more than one telephone call or electronic communication have been made by the same person?

Ultimately each case has to be considered on its own facts.

Should the prosecution give notice of an application?

The Criminal Procedure Rules do not require the prosecution to give notice of an application to admit hearsay evidence under the res gestae principles.  Any notice given very much depends on the prosecutor dealing with the particular case.  Where an application is made in advance and refused the case will end at that stage unless there is other admissible evidence to secure a conviction.

Even where a court admits res gestae evidence it must still evaluate that evidence in the usual way.  The prosecution must still proved its case to the required standard.

Exclusion of evidence under section 78 PACE 1984

A defendant has an opportunity to apply to exclude evidence of res gestae.  If a court has admitted the evidence, application can be made under Section 78 of Police and Criminal Evidence Act 1984.  The court has a discretion to exclude evidence which would otherwise be admissible.

For example, there may be cases where the prosecution have failed to take sufficient steps to ensure a witness’s attendance at court. The prosecution might have purported to tender the prosecution to the defence.  This means that the defendant would be at liberty to call the witness.

Circumstances like these might permit a persuasive argument that the defendant has been denied an opportunity to test the evidence through cross examination of the witness.

An application to admit hearsay evidence should be an application of last resort.  In many cases the prosecution will attempt such an application when a witness might be available to give evidence as to the facts.

In the case of R v Andrews it was stated that a court should “strongly deprecate any attempt in criminal prosecutions to use the doctrine [of res gestae]as a device to avoid calling, when he is available, the maker of the statement”.

Contact a specialist criminal defence solicitor

On behalf of a defendant, a solicitor must make sure that the prosecution does not use a res gestae application to place otherwise inadmissible hearsay evidence before the court.  Solicitors must ensure that the statutory and procedural safeguards are used to ensure a defendant’s right to a fair trial.

A defendant will wish to instruct a solicitor who is alive to all of the issues relating to this evidence and prepared for an argument at short notice against the admissibility of re gestae.

If you face allegations before the court where the decisive evidence res gestae hearsay evidenceis that of an absent witness then contact your nearest office to speak to a specialist criminal defence solicitor.  Alternatively you can use the form below.

Legal aid will often be available to ensure that the defence of your case will be free of charge to you.

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News

No disqualification means client not driving whilst disqualified!

Nottingham crime solicitor Stacey Mighty ensured that her client’s concerns about his prosecution were followed up.  The result was that the charge of driving whilst disqualified was withdrawn.

Driving whilst disqualified

Stacey’s client faced an allegation of driving whilst disqualified.  This was said to have been during the currency of a driving disqualification until an extended re-test was passed.  He denied ever having been the subject of such a disqualification.

The disclosure received from the prosecution did not give a date for when the disqualification had been imposed.  The more detailed print out from the DVLA failed to shed any more light on the situation.

No driving ban

The only conviction that could have led to such an order being made was in 2015 where it appeared that our client had received a simple 6 month fixed term disqualification.

Stacey recognised that her client’s time was precious to him.  She could have asked for the case to be adjourned to another day.  Instead Stacey ensured that the original court file for that date was brought into court.  This confirmed that there had been a driving disqualification without an requirement for an extended re-test.

As a result, the prosecution withdrew the allegation of driving whilst disqualified at this first hearing.

Contact a criminal law specialist

not guilty of driving whilst disqualified
Derby duty solicitor Stacey Mighty

Police, court and prosecution records might be wrong.  The prosecution might not be able to prove an essential element of an offence.  As a result, you will wish to take early advice from a criminal law specialist such as Stacey in order to ensure that your case is properly prepared and presented.

Please call Derby criminal solicitor Stacey Mighty on 01332 546818 to discuss your case.  Alternatively use the enquiry form below.

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News

Magistrates’ Court representation secures discontinuance

Derby crime solicitor Stacey Mighty provided advice and representation to a client charged with an allegation of criminal damage.  She had already provided free and independent legal advice to her client in police interview.  Stacey then gave her client the continuity of representation that he wanted by going on to provide Magistrates’ Court representation.

Denied allegation of criminal damage

Our client faced allegations that he had had damaged his girlfriend’s property.  You can read more about the law on criminal damage here.  He was denying the allegation.  Further, our client believed that his girlfriend was no longer interested in cooperating with the prosecution.

In this case, the complainant in the case had told the police that she did not want to pursue the allegation.  As a result the prosecutor at court already knew that was the case.  Despite this a decision had been made that the prosecution should continue.

Prosecution in the public interest?

Stacey had made representations prior to the case being heard that the prosecution should simply drop the case. It was a minor allegation and it could not be in the public interest to proceed when the witness was no longer interested.

Other factors suggested that the prosecution was not necessary:

  • there was no history of domestic incidents
  • a defence had been put forward in interview
  • our client’s limited convictions
  • there would be a need to force the witness to attend court

Magistrates’ Court representation by solicitor will make a difference

Stacey’s client pleaded not guilty due to the position adopted by the prosecution.  He was ready to contest the case at trial.  The case was, however, listed before a District Judge in the Magistrates’ Court.

Stacey took the opportunity to raise the same issues again but with the Judge.  He shared Stacey’s concerns as to whether the case should proceed.

Instead of listing the case for trial the District Judge gave the prosecution two weeks to fully review the decision to proceed.  As a result of Stacey’s representation at court the prosecution decided to discontinue the charge.  This decision ultimately meant that the resources of the prosecution and the court could be diverted to other cases.

Stacey’s client avoid the risk of being convicted after trial before Magistrates.

Contact Derby crime solicitor Stacey Mighty

magistrates' court representation Derby
Derby criminal solicitor Stacey Mighty

The benefit of instructing specialist crime solicitors VHS Fletchers solicitors is that we will aim to provide you with continuity of representation at the police station and Magistrates’ Court.

This means that the solicitor with knowledge of your case will deal with you throughout proceedings where possible.  This case demonstrates the benefits of such an approach.

Our independent legal advice in the police station is always free of charge to you.  You can read some of the benefits of our advice in the police station here.

Magistrates court representation will often be available under the criminal legal aid scheme.  You can read more about that here.

Whether you need free legal advice in the police station or Magistrates’ Court representation please call Stacey to discuss your case.  She can be contacted on 01332 546818.  Alternatively you can use the contact form below.

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