Tag Archives: offences

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The law and mobile phone offences

We all know that the use of mobile phones is banned whilst driving.

Or are they?

The answer, according to the High Court’s recent decision in Director of Public Prosecutions v Barreto, is that it depends what you’re doing with it.

mobile phone offences

What did Mr Barreto do?

Ramsey Barreto had been convicted in the Magistrates’ Court of using his mobile phone to film an accident while he was driving. The prosecution was under s41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986.

What do these laws say?

These provisions make it an offence to use ‘a hand-held mobile telephone or other hand-held interactive communication device.’

‘Interactive communication’ means ‘sending or receiving oral or written messages, sending or receiving facsimile documents, sending or receiving still or moving images, and providing access to the internet.’

How did Mr Barreto overturn his conviction?

Barreto appealed his conviction to the Crown Court. The Crown Court acquitted him on the basis that videoing on a phone did not come within the definition of the offence, because no interactive communication was taking place.

The Director of Public Prosecutions, head of the Crown Prosecution Service, appealed on that point of law to the High Court.

As the High Court pointed out, the Crown had assumed the legislation banned all mobile phone use. Mr Barreto said that was not the case.

What did the High Court say?

The High Court agreed with Mr Barreto and the Crown Court. He was allowed to go free without a stain on his character. The Court said:

“The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process).”

Does this mean you can play Candy Crush while you’re driving?

No, probably not. The High Court made the point in their concluding paragraphs, saying:

“It should not be thought that this is a green light for people to make films as they drive. As I have already said, driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving.”

There is also a related offence (although it carries fewer penalty points) of not being in control of a motor vehicle.

Once again, road traffic law has proved to be one of the trickiest areas of criminal work – don’t leave your licence to chance, ensure you use a firm that is fully up to date with all developing legal arguments.

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Contact an expert motoring law solicitor

Your driving licence is likely to be extremely important to you, whether for work, family or social purposes.

As a result, you will only want to trust the preparation of your case to a specialist in mobile phone offences and road traffic offending.

You can read the detail of a case where we successfully defended a motorist for mobile phone offences here.

You can read more about our fixed fees for defending such cases here.

You can find your nearest office here or use the contact form below.

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Consent and Sexual Offences

It would be thought that in relation to sexual offences and the issue of consent the issue should be straight forward – yes or no?

As always, life and the law are more complicated than that.  The issue of consent is, unfortunately, not so simple.

What is consent?

 A person consents if she or he agrees by choice and has the freedom and capacity to make that choice.

consent rape

Can a drunk person give consent?

Yes, drunken consent is still consent.  However, this is where problems can arise. If a person loses their capacity to choose through drink then he or she is not consenting.

Where a person is consenting is frequently the issue in many rape cases.  As a result it is often one word against another.

The Courts have given the following guidance as to the issues to focus upon:

  1. Did sexual intercourse take place?
  2. Did the complainant consent to sexual intercourse?
  3. Did the complainant have the freedom and capacity to consent?
  4. Did the defendant reasonably believe that the complainant was consenting? This consideration will not apply in all cases.

Who decides?

 At trial, it will be for the jury to determine issues of capacity and consent having heard all of the evidence.

How do you prove consent?

In the absence of something in writing, and even then, there could be doubts  A jury will have to decide the issue having heard all of the evidence.

consent sexual offenceIn some cases, it is not enough for a defendant to simply say that he or she believed the other person was consenting.  There must be evidence that he or she had a reasonable belief that there was consent. This would include considering any steps taken by the defendant to ascertain the complainant was consenting.

The situation could also arise where consent is given on condition, for example, that a condom is used. If one is not used, then the “consent” may no longer provide a defence.

There have also been cases where a female has pretended to be a male and had intercourse on that basis. The defendant was guilty because the complainant said that she would not have consented if she had known that the defendant was female.

How can we help?

This article is a brief analysis of potential issues, as you can see this is an area that would require careful assessment and expert advice.

The problem with many alleged sexual offences is that they require a jury to examine intimate factual scenarios, often clouded by drink or drugs, where there is seldom any independent evidence to assist one way or the other.

consent rape

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

To ensure that your defence is properly advanced from the start, you will want to take advantage of our free and independent legal advice in the police station.  The advice is free to you no matter what your income.  You can read about the advantages of early advice here.

Sexual offences are likely to be heard before the Crown Court.  We will always advise you as to your entitlement to legal aid to ensure affordable representation at trial.  You can read more about Crown Court legal aid here.

We provide nationwide representation from our offices across the East Midlands.  You can find your nearest office here.  Alternatively you can use the contact form below.

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Offences taken into consideration (‘TICs’)

What are offences taken into consideration or ‘TICs’?

These are offences taken into consideration at the time of sentencing.  These ‘TICs’ are not offences that are charged.

When will a person be asked about them?

 Where someone has pleaded guilty to an offence or offences, or is expected to do so, or are due to be sentenced after trial, a person can admit other matters so that they can be offences taken into consideration at that sentencing hearing.

As well as a person volunteering offences, the police may also approach them to ask if they want to accept any TICs.  It is crucial that free and independent legal advice is obtained at this stage as there are consequences and risks to having offences taken into consideration on sentence.

What happens if I want to admit TICs?

 You will be spoken to under caution.  If you do admit other offences and the police and prosecution agree, a schedule of the offences will offences taken into considerationbe prepared and placed before the court.

It is then for the court to decide whether or not to take them into account when you are sentenced.

The positive side of such a process is that the court will consider the fact that you have assisted the police and shown a genuine desire to “wipe the slate clean”.  This will support any suggestion of genuine remorse for any offending.  More can be found about such mitigation here.

Additionally, the police will no longer be searching for the person responsible for these offences so there will be no risk of future arrests and sentence.

Offences taken into consideration will make a difference to your sentence.  Any sentence will be longer as a result of the TICs,  Any increase, however, may not be as much as if you were sentenced separately for those offences.

The negative consequences of TICs

On the negative side, the acceptance of offences taken into consideration may result in a greatly increased sentence.  They will be treated as an aggravating feature of your offending.  This will be especially true if there is a large number of TICs.

The total sentence imposed has to reflect all of the offending behaviour.

A defendant can also be ordered to pay compensation in relation to TICs.

offences taken into considerationFinally, it may be that the offences might never have been linked to any suspect.  As a result, a defendant may be admitting more than could ever be proved.  As a result there will be a trade off between peace of mind as against looking over your shoulder wondering whether your past will catch up with you.

Wiping the slate clean

If you wish to wipe the slate clean it is important to ensure that all outstanding offences are admitted, otherwise you may not receive any discount if a future prosecution is brought.

In the recent case of Murray [2018] EWCA Crim 1252 the court observed (citing an earlier case of McLean [2017] EWCA Crim 170):

“It seems to us however that this appellant must have made a conscious choice not to disclose the July 2014 matter in the hope that it would go undetected. In those circumstances he cannot now claim to be sentenced as if both matters should have been dealt with together in January 2015. To permit that to happen at this stage would be unjust to the public interest in giving the appellant an undeserved, uncovenanted bonus. This case therefore is a salutary illustration of the benefits which can accrue to offenders from making voluntary admissions of additional offending and the risks that they run if they choose not to do so.”

What sort of offences can be TIC’d?

 Similar offending is likely to be accepted as a TIC. An offence is unlikely to be accepted as a TIC if –

  • it is an admission to an offence more serious than the one you have pleaded guilty to;
  • it is an offence that would attract disqualification or penalty points on conviction;
  • if it is an offence committed in breach of an earlier sentence;
  • where it is an offence completely dissimilar to the one charged; or
  • where it is a specified offence when the charged offence is not.

If further offences are admitted will they definitely be offences taken into consideration?

 Not necessarily.

Admissions in the circumstances above may lead to further criminal charges being brought against a defendant.  This is why it is important to seek free and independent legal advice.

How can we help in these circumstances?

Any advice as to whether to accept TICs or not is likely to be dependent on both your personal circumstances and the offences involved.

If we are already representing you then we will be able to take your instructions and provide you with advice on the likely effect of admitting further offences to be taken into consideration.

Where we do not currently act for you and you want our expert advice then please contact your nearest office.  Our independent legal advice in police interview will always be free of charge to you under the criminal legal aid scheme.

 

News

Social media crime and how to avoid it

With the ever-growing popularity of social media websites such as Facebook, Twitter and Instagram it is important to take a step back and consider your use of them. You need to make sure that you and your children not only control the personal information that is put onto social media but also your behaviour on such sites to steer clear of social media crime.

social media crime

Control your online information

 Be aware of the potential for cyber-enabled fraud. Fraudsters can use information obtained from such sites to commit identity theft. social media crimeTelling everyone about your forthcoming holiday may also be an advance invitation to a burglar.  It is surprising how much information we reveal about ourselves over a period of time.

If you have children you also need to be aware of the dangers of persons contacting them and then grooming your child.  This involves building an emotional attachment to them with a view to a meeting for the purpose of sexual abuse or exploitation.

Many online games allow for messaging between users – do you know who your child is talking to?

Control your own behaviour

 Many offences can be committed in the heat of the moment or when in drink.  They will involve the typing of a comment that cannot then be taken back.

social media crimeTrolling, or sending abusive messages online, can be an offence under the Malicious Communications Act 1988 and the Communications Act 2003.  Stiff penalties can be imposed in either case.

Revenge porn, involving publishing intimate images of an ex-partner without their consent, is now a criminal offence and often results in a prison sentence.  This article deals with this type of offending in more detail.

What may seem to be banter to you may actually be offensive.  What may be intended to be seen by a few could end up being seen by thousands of social media users.

The use of a fake social networking profile or account may also be a criminal offence in certain circumstances.

What about freedom of speech and social media crime?

 Freedom of speech is not an absolute right and may be restricted where necessary and proportionate.

 Think it couldn’t happen to you?

 You might remember the Robin Hood Airport case?  In that case a young man made what he intended to be a jokey comment about blowing up the airport if he couldn’t make his flight due to adverse weather.

He found himself in court and was convicted by magistrates.  He lost his appeal to the crown court.  His conviction was finally quashed at a second High Court appeal. By then he had already lost his job as a consequence of the conviction.

 What are the consequences?

 Social media has recently been blamed for an increase in knife social media crimecrime.  It is argued that it can amplify the effect of violence. Accordingly, online offences are being dealt with seriously.

Last year the Crown Prosecution Service updated its policy statements in order to take account of the increase in online abuse,.  The change is to emphasise that individuals need to appreciate they can’t go online and use their keyboard without any consequences.

At the other end of the spectrum, saying something unpopular or unpleasant is not unlawful.  People’s sensitivities do need to be balanced with free speech, and we see reported a number of cases that cause us concern.

This tide of sensitivity could result in people pleading guilty when in fact they are not.

How can we help defend social media crime?

Social media crime will involve serious allegations and the law is complex.  As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.

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

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

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

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Rogue Landlord Banning Orders – new provisions from April 2018

rogue landlord banning ordersThe government has recently announced that it intends to bring into force a number of provisions contained within the Housing and Planning Act 2016 including banning orders.

From 6 April 2018 the Act will allow local authorities to apply for a banning order where a landlord has been convicted of a ‘banning order offence.’

What is a banning order?

A banning order will ban a person from:

  • letting housing in England,
  • engaging in English letting agency work,
  • engaging in English property management work, or
  • doing two or more of those things.

The banning orders will operate whether a landlord acts on their own behalf or via a corporate body.

What offences might prompt an application for a banning order?

The following offences are capable of triggering an application for a banning order as they are banning order offences:

Any offence involving:

  • fraud
  • the production, possession or supply of illegal drugs
  • violent and sexual offences

will be appropriate banning order offences subject to there being a link between the property being rented out and/or the tenant/household.

The offences below (subject to there being a link between the property being rented out and/or the tenant/household) are also on the list of banning order offences:

  • An offence under sections 327-329 Proceeds of Crime Act 2002.
  • An offence under sections 2 or 2A Protection from Harassment Act 1997.
  • An offence under sections 30 or 48 Anti-social behaviour, crime and Policing Act 2014.
  • An offence under sections 7, 9, 21 or 22 Theft Act 1968.
  • An offence under sections 1(1) or 2 Criminal Damage Act 1971.
  • Illegally evicting or harassing a residential occupier in contravention of the Protection from Eviction Act 1977 or the Criminal Law Act 1977.

Offences under the Housing Act 2004 that will trigger banning orders

Unsurprisingly, any of the following offences under the Housing Act 2004 are also relevant offences for banning orders:

Failure to comply with an Improvement Notice

Offences in relation to licensing of Houses in Multiple Occupation (HMOs);

Offences in relation to licensing of houses under Part 3 of the Act;

Allowing a HMO that is not subject to licensing to become overcrowded;

Providing false or misleading information.

Failure to comply with management regulations in respect of HMOs;

An offence under the Health and Safety at Work etc. Act 1974 where a person contravenes section 36 of the Gas Safety (Installation and Use) Regulations 1998;

Failure to comply with a Prohibition or Emergency Prohibition Order under sections 20, 21 and 43 of the Housing Act 2004;

An offence under section 32 of the Regulatory Reform (Fire Safety) Order 2005.

Can a landlord argue against the making of a banning order?

rogue landlord banning ordersYes, you can make representations both to the local authority before the making of the application and to a tribunal if proceedings are commenced.

There are the following protections for landlords facing applications for banning orders:

Before applying for a banning order the authority must give the person a notice of intended proceedings.  This notice will inform the landlord that the authority is proposing to apply for a banning order and explain why.

The notice will also stating the length of each proposed ban, and invite the person to make representations within a period specified in the notice of not less than 28 days.

Once the notice has been issued, there are the following obligations:

  • The authority must consider any representations made during the notice period.
  • The authority must wait until the notice period has ended before applying for a banning order.

A notice of intended proceedings may not be given after the end of a period of 6 months.  This period begins with the day on which the person was convicted of the offence to which the notice relates.

What happens if a landlord breaches the banning order?

Breach of a banning order is a criminal offence.  It carries up to six months imprisonment and an unlimited fine. It is also highly likely that confiscation proceedings under the Proceeds of Crime Act 2002 will follow to recover income derived in breach of  banning orders.

How we can help you as a landlord

This type of law illustrates perfectly the often-hidden consequences of a criminal conviction.  To represent people properly, it is not enough that a solicitor understands only the main offence.  Any solicitor you choose will need a wider appreciation of the effects on a defendant.  Once these are understood, they will be fully considered during the planning of your defence.  As a result, it may not be the solicitor who handles a landlord’s property matters who is best placed to handle a criminal investigation.

Our highly experienced team can assist you in navigating the initial criminal proceedings that can give rise to the banning order application.  We also understand confiscation proceedings and skilled in the practice of negotiation with public bodies.

As a result, we will help you work towards the most favourable resolution in your case.

Contact crime and regulatory solicitor Martin Hadley

landlord banning orders
crime and regulatory solicitor Martin Hadley

Contact crime and regulatory solicitor Martin Hadley on 0115 9599550.  Alternatively you can use the contact form below.  You will then be able to discuss any allegations of criminal conduct arising out of your business as a landlord.

We will be able to provide you with free and independent legal advice if you are interviewed by the police, whether as a volunteer or under arrest.  This is because be have a contract with the government to provide criminal legal aid.

Martin will discuss with you your options for funding any interview with the local authority or court proceedings.

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Animal cruelty offences – the proposed increase in sentences

Proposed increase in sentences available for animal cruelty offences

The government has recently announced that it is planning to introduce legislation which will increase the maximum custodial sentence for animal cruelty offences under the Animal Welfare Act 2006.

The current limit is one of six months’ imprisonment.  The new proposals would raise this to five years. This would bring England and Wales into line with other countries’ policies on animal cruelty.  It would also correct an issue of proportionality in relation to penalties available for other offences.

Offences covered by the Act

The Animal Welfare Act 2006 makes all of the following a criminal offence:

  • causing animals unnecessary suffering (whether intentionally or not)
  • improperly docking dogs’ tails
  • causing unnecessary mutilation
  • administering unauthorised poisons or drugs
  • participating in the organisation or facilitation of animal fights
  • failing a duty of care to particular animals.

The Act adopts a wide definition of ‘animal’.  It includes any “vertebrate other than man.”

animal cruelty offences legal advice

Current sentencing policy

The Act allows for a range of penalties.  These range from absolute discharges to custodial sentences of up to six months in length. The statistics on sentences imposed upon people convicted of animal cruelty in 2015 are revealing. In that year, 933 people were convicted of offences under the Animal Welfare Act.

A breakdown of that total shows the following distribution of the penalties for animal cruelty offences:

Penalty                                                          Number of people

Immediate custodial sentence                     91
Suspended sentence                                          202
Community sentence                                        341
Fine                                                                              177
Conditional discharge                                       100
Absolute discharge                                              3
Other                                                                            20

The RSPCA has investigated the custodial element of that breakdown further. Only three people received the maximum sentence of six months’ imprisonment. Those who received four-month sentences included, it is argued, offenders who gained credit for a guilty plea having committed an offence that potentially warranted a six-month sentence.

Why some say that increase is necessary

The view of the Government and various animal rights organisations is that a disconnect exists between these punishments and the  animal cruelty offences themselves.  Recent cases which have prompted this change include a man who purchased a number of puppies for the sole purpose of killing them by beating, choking and stabbing. The current sentences available to the courts are unable to do justice to such instances of cruelty.

The reforms are also supported by the manifest disparity between penalties for animal cruelty offences in England and Wales and those in other jurisdictions.

For example, the maximum sentences for animal cruelty in Germany and Northern Ireland are three years and five years respectively.

animal cruelty offences defence solicitor

The argument is further strengthened by looking at the maximum sentences attached to other crimes. Fly tipping, for example, carries a maximum sentence of five years’ imprisonment. The same sentence is also the limit for abstracting electricity. Many would argue that the damage and requisite mind-set involved in animal cruelty offences should mean the maximum penalty should at least be to that of these other crimes.

The new guidelines and their context

The Government is planning to produce a draft of the new legislation towards the end of the year. The main provision will be the increase in the maximum sentence for animal cruelty from six months’ imprisonment to five years. People who commit the most serious crimes against animals, such as the example reported above, may then face a prison sentence which is measured in years.  It will be comparable to a conviction for an offence such as assault occasioning actual bodily harm.

This policy change follows a previous related announcement on the proposed use of CCTV cameras in slaughterhouses. The timing of both proposals represents an attempt to change the UK’s reputation for animal welfare as it leaves the European Union.

Contact one of our solicitors – we are here to help

animal cruelty offences interview under cautionAnimal welfare legislation is complex and can lead to a prison sentence.   It therefore makes sense to instruct an expert if you are under investigation or facing court proceedings.

We will be able to provide you with free and independent legal advice at any interview under caution.  If charged we will provide you with the expert advice and representation that you will need to ensure the best outcome for you at court.

You can find details of your nearest office here.  Alternatively you can use the contact form below.

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