Tag Archives: order

News

Tough New Weapons Laws Hit the Statute Book

On 16th May 2019 the controversial Offensive Weapons bill received Royal Assent, bringing into law the Offensive Weapons Act 2019.

Why were new weapons laws thought necessary?

This legislation has been passed in order to assist in stemming the current problems in relation to knife crime and other serious offending involving weapons.  Whether or not it will be successful remains to be seen.

These new weapons laws do, however, bring in a number of new measure that we will be monitoring closely.

 

Are the new laws in force now?

As with most Acts of Parliament different provisions come in to force at different times.  As a result, if you have any questions please consult us to ascertain the up to date position.

What are the main changes?

New offences:

Sale of corrosive products to persons under 18

This offence carries a maximum sentence of 6 months imprisonment and may present a significant challenge for some smaller retailers.  They will need to ensure that comprehensive training is provided to all sales staff to avoid the potential prosecution and punishment.

The offence of having a corrosive substance in a public place

This offence carries a maximum sentence of 4 years’ imprisonment.

The offence of breaching knife crime prevention order

This offence carries a maximum sentence of 5 years’ imprisonment.

Sale etc. of bladed articles to persons under 18

This provision extends existing law but introduces several complex challenges for retailers.

Online retailers will also be affected by these provisions.

Knife Crime Prevention Orders:

This new order is essentially a ‘knife crime ASBO’.  It is one of the most stringent preventative orders ever to have been brought into law.

This aspect of the new weapons laws has been widely condemned.  The scheme is likely to be piloted first in London.  The implementation is likely to be extremely controversial.  We are currently awaiting further details of the pilot along with statutory guidance on their use.

Other changes of note:
  • Amendments to the definition of “flick knife” to cover knives fully opened from a partially open condition and by ‘manual pressure applied to a button, spring or other device in or attached to the knife’. This change will close existing ‘loopholes’ in the current legislation
  • Prohibition on the possession of certain dangerous knives
  • Prohibition on the possession of offensive weapons on further education premises
  • Prohibition on the possession of offensive weapons (numerous statutory amendments)
Numerous changes to offences concerning:
  • The offence of threatening with an offensive weapon etc. in a public place etc
  • The offence of threatening with an offensive weapon etc. on further education premises
  • The offence of threatening with an offensive weapon etc. in a private place
  • Searches for corrosive substance on school or further education premises
  • Various firearms offences

We will be carefully monitoring the implementation of these new measures to ensure that we are always able to provide up to date and comprehensive advice to our clients, whether in police interview or at court.

Contact an expert about the new weapons laws

If you are arrested or know that the police wish to speak to you about any offending involving a weapon then make sure you insist on your right to free and independent legal advice.  The courts will always take such offences seriously upon conviction.

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

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

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

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

VHS Fletchers offices across the East Midlands

Alternatively you can contact us using the form below.

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News

Company directors disqualification – the hidden penalty on sentence

Our clients will turn their mind to what punishment they might receive if they plead guilty to, or are convicted of, a criminal offence.  In most cases the thought is whether it might be a prison sentence, a community penalty, or a hefty fine and perhaps not a directors disqualification.

While the substantive penalty is, of course, important, on occasion there are other things more serious to consider. In previous articles, we have looked at issues such as confiscation, and in this article, we consider a company directors disqualification.

What do business people need to consider?

The Company Directors Disqualification Act 1986 provides that a court may make a disqualification order where a person is convicted of an offence which is concerned with the mismanagement of a company.

There are a wide number of scenarios catered for under the Act.  As a result the actual circumstances must be considered with care. In certain situations, offences committed abroad will also qualify, as set out in section 5A of the Act.

 

What conduct is relevant?

Both the internal and external management of the company are relevant to section 2(1) of the 1986 Act (Corbin (1984) 6 Cr App R (S) 17).  A director’s general conduct in running the affairs of the business is also relevant (Georgiou (1988) 10 Cr App R (S) 137).

The court has extensive discretion in relation to most offences:

‘This is a completely general and unfettered power given by Parliament to courts on the occasion when a person is convicted of an indictable offence of that type. Parliament has decided not to give the sentencing court any guidance as to the way in which it ought to exercise its powers of disqualification in the very many and varied circumstances in which it may come to exercise those powers” (Young (1990) 12 Cr App R (S) 262).

What is a ‘disqualification order’?

The effect of the order is to prevent a person being involved in the future affairs of [any] company:

  • he shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the court, and
  • he shall not act as an insolvency practitioner.

How long does the order last?

An order made by a Magistrates’ Court can be for no longer than five years.  An order made by the Crown Court must be no longer than fifteen years, although in relation to some offences there is a shorter time frame specified.

The Court of Appeal has on occasion supported the making of lengthy orders, for example, one lasting eight years in R v Singh-Mann and Others [2014] EWCA Crim 717.

Will a guilty plea make any difference as to the length of the order?

A guilty plea will not act to reduce the disqualification period.  This is because the discount for an early plea does not apply to ancillary orders (Clayton [2017] EWCA Crim 49, [2017] All ER (D) 71 (Jan)).

It is, however, inappropriate to order disqualification where the offender is conditionally discharged (Young (1990) 12 Cr App R (S) 262).

It may be inappropriate for a court to order compensation to be paid by a director who, by virtue of the making of this type of order, will be deprived of the ability to earn a living (Holmes (1992) 13 Cr App R (S) 29).

What happens if I breach the order?

Imprisonment of up to 2 years may be imposed if an order relating to a directors disqualification is breached.

How we can assist in a directors disqualification case

We are experts in all aspects of criminal law.  As a result we are well placed to advise you if the above provisions relating to a directors disqualification might be invoked in your case. If you have any concerns or simply to discuss any aspect of your case, then please contact your nearest office here.

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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.

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