Tag Archives: prosecution

News

Tougher approach to assaults on NHS staff

Matt Hancock, Secretary of State for Health and Social Care, has written to NHS staff voicing his concern in relation to the use of violence against emergency workers.  Hancock’s approach mirrors that taken last year by police chiefs who were worried about the rise in violence used towards their police officers.

Last year’s NHS Staff Survey revealed that 15% of NHS staff and 34% of ambulance trust staff had experienced physical violence.  As a consequence, the NHS, police and Crown Prosecution Service have approved a joint agreement on offences against emergency workers.

assaults on nhs staff

The purpose of the joint agreement is to provide a framework to set out what victims of this crime can expect and to ensure effective investigation and prosecution. The joint agreement is in relation to assault on all emergency workers and there seems to be a renewed focus on this area.

What differs from the policy towards other victims of violence?

At investigation level the agreement sets out that the Victims’ Code applies.  As a result victims will be offered the opportunity to complete an impact statement  This is the same for all victims, but there are substantial differences in other respects:

  • organisational impact statement – the organisation (hospital, GP surgery, ambulance service) cam set out the impact that the crime has had on their service
  • community impact statements may be submitted
  • guidance on the management of potential exposure to blood-borne viruses should be considered. It advises on the risk of infection through injury of Hepatitis B, C and HIV

The decision to prosecute

The charging decision is made in the same way for all offences using a two-stage test.  The first question is whether there is sufficient evidence for a realistic prospect of conviction.  If the answer is yes, the second question is whether a prosecution is required in the public interest.

It is acknowledged that assaults on NHS staff are sometimes committed by those in crisis or with neurological conditions.  The CPS must take account of the level of culpability of the suspect including whether he or she was affected by any significant mental or physical health or disability.

If they were so affected, it may mean that a prosecution is not required. On the other hand, prosecutors are told that a prosecution is more likely if the offence is committed against a person who is serving the public at the time.

Challenging a decision not to investigate or prosecute is the same for NHS staff as for other victims.  An issue can be raised with the police if they decide not to proceed with an investigation or the victim’s right to review can be invoked following a CPS decision.

An important aspect of seeking our expert legal advice if you are being investigated or prosecuted for such offence is that when  appropriate we will identify cases where it is appropriate to challenge a wrongful charging decision.

This will be particularly relevant in cases where a client was suffering from mental or physical disability that could have affected their judgement.

A Seven-point plan

The agreement contains a pledge to emergency workers via a seven-point plan, which can be summarised as:

  1. assaults and hate crimes will be investigated in the same way as for members of the public;
  2. the Victims’ Code applies to all victims including staff and volunteers;
  3. the affected member of staff should not investigate their own assault;
  4. the right welfare and supervision should be offered to victims;
  5. the supervisor must ensure that the head of department is informed to provide continuity of welfare support;
  6. the victim is to complete a Health and Safety incident report with their supervisor;
  7. to ensure a successful prosecution, the best evidence must be presented.

As can be seen, this plan tackles a perception that assaults against emergency workers could be seen as being something to be expected or tolerated as being a part of the job.

All our lawyers are trained to ensure prosecution guidance is properly applied.  We are also trained to ensure that Magistrates and Judges properly apply the sentencing guidelines for any given offence.

It is always a risk where particular types of case are given substantial publicity that courts react in an overly harsh way towards defendants.  We will ensure that the best result possible is secured on your behalf.

How can we help?

Assault on an emergency worker is more serious than common assault, carrying a sentence of up to 12 months, and as a result we are seeing more cases come before the Crown Court for sentence.

More serious assault will continue to be charges as allegations of assault occasioning actual bodily harm or wounding.

If you are arrested or know that the police wish to speak to you about an allegation involving an emergency worker, 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 and will happily travel across the country to provide representation for all football related offences.

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VHS Fletchers offices across the East Midlands

Alternatively you can contact us using the form below.

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News

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.

keep your driving licence

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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News

Representations made to CPS in sex dolls case

Freddie Sail trainee solicitor
Trainee solicitor and Crown Court litigator Freddie Sail

Crown Court Litigator and trainee solicitor Freddie Sail recently prepared a case for trial at Nottingham Crown Court for a client who faced two allegations of importing what were said to be child-like sex dolls into the UK.

The case shows that often written advocacy can be as important as what is said in court.

A gap in the law on child-like sex dolls?

There is an apparent gap in the law in relation to such items.  For example, it is not illegal to simply possess a child-like sex doll.  As a result, the prosecution choose to bring proceedings under section 50(3) Customs and Excise Management Act 1979 where the item has been brought into the country.

This states, simply, that it is an offence for a person to import any goods contrary to any prohibition with the intention to evade that prohibition.

The prohibition that catches child-like sex dolls is under section 42  Customs Consolidation Act 1876 which states:

“The goods enumerated and described in the following table of prohibitions and restrictions inwards are hereby prohibited to be imported or brought into the United Kingdom.”

The ‘table of prohibition’ includes:

“Indecent or obscene prints, paintings, photographs, books, cards, lithographic or other engravings, or any other indecent or obscene articles.”

You can read more about this aspect of the law here.

New prosecution guidance on child-like sex dolls

sex dollsEarlier this year, new guidance was issued about the evidence that would be needed to bring a successful prosecution and broader public interest consideration.  You can read more about this here.

Freddie saw that the guidance had been issued.  He took the opportunity to review his client’s case.  This was to see whether steps should be taken to ask the prosecution to look again at whether his client should be prosecuted.

His client denied from the outset the two crucial elements of the offence.  Fundamentally, he denied that the doll was representative of a child.  He had bought it as depicting an adult.  Secondly, he was unaware of any prohibition relating to the importation of child-like sex dolls in any event.

Written representations to the CPS

Having looked at the case together with the guidance Freddie wrote a persuasive letter to the Crown Prosecution Service, asking a lawyer to review the evidence.

In brief, he stressed the following factors:

  • the prosecution was not in line with the new guidance
  • ‘expert’ evidence in this case should not be relied upon
  • there were sufficient features of the doll to mean that it was not ‘unquestionably’ a portrayal of a child
  • a lack of evidence suggesting our client was aware of any prohibition
  • the advertising of the items as ‘adult sexy dolls’

This communication with the prosecution was referred to by Freddie on the trial readiness form.

sex doll

No evidence offered following the review

Freddie’s representation were successful.  The prosecution accepted that in the light of the new guidance the case should not be pursued to trial.  The matter was listed quickly and no evidence was offered.

Freddie’s client was overjoyed when the not guilty verdicts were announced.

Contact a criminal law specialist

If you are arrested or know that the police wish to speak to you about any offending arising out of the importation of a child-like sex doll or any other item make sure you insist on your right to free and independent legal advice.  The courts are always likely to 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.

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VHS Fletchers offices across the East Midlands

Alternatively you can contact us using the form below.

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News

Child-like sex dolls – new prosecution guidance

Are child-like sex dolls illegal?

The Crown Prosecution Service has issued new guidance to prosecutors as to which offences may be committed regarding “child-like” sex dolls after more than 200 seizures by Customs Officers in the last two years.

The potential offences are:

  • Importing obscene articles.
  • Publishing an article for gain or not, or having an article for publication for gain, which is obscene.
  • Sending an obscene article by post.

We have published a previous article on this subject here.

Is it illegal to own or make a child-like sex doll?

No.

There is no crime of making or possessing a childlike sex doll.  It is the importation or sending that triggers a potential offence.

What does child-like mean?

There is no definitive guide to what “childlike” means.  Size, characteristics and description will all be considered.  This goes to the issue of obscenity.

This is one of the most troublesome legal issues.  It will ultimately be a matter for a Judge or Jury to decide when the issue is not clear cut.

child-like sex doll

Does the doll have to be made for sex?

Yes.

The doll must have been made for sexual use.  Again, this is what may give rise to the obscenity issue. When deciding whether this is the case its design, accessories and advertised purpose will all be relevant.

What else has to be proved?

That depends which of the offences you are charged with.

If it is importing then it has to be proved to the criminal standard that you knew it was unlawful to import them.

If it’s one of possessing it for publication for gain, the prosecution will have to prove there would be some gain to be made.

child-like sex dolls

How long could the prison sentence be?

 That, again, depends on the charge.

  • importation offences carry a maximum of seven years
  • publishing obscene articles carries a maximum of five years
  • the postal offence a maximum of one year.

The new prosecution guidance on child-like sex dolls

child-like sex dollsThe new guidance is extensive, and among other things stresses the following:

“[The decision to prosecute] involves an exercise in judgment about what a jury is likely to conclude about the appearance of the doll. Expert evidence as to age or appearance, or obscenity, is not admissible and should not be sought. This is consistent with the position in respect of indecent images of children, where the age of a child is a finding of fact for the jury to determine and expert evidence is inadmissible.”

“[It is not] permissible to use other evidence, such as other material suggesting a sexual interest in children (for instance, indecent images of children), when assessing whether the doll is, objectively and of itself, obscene. Neither the motive of the person possessing/importing, nor the existence of material external to the doll, is relevant or admissible on this question.”

In relation to the aspect of a case involving importation the guidance stresses the following:

“As possession of a childlike sex doll is not unlawful per se in England and Wales, prosecutors should start from the position that, without more, a suspect may not know its importation is unlawful. Prosecutors will need to consider this element of the offence carefully.”

The full guidance for the Crown on the prosecution of cases involving child-like sex dolls can be found here.

Contact an expert in criminal law

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

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.

As expert criminal solicitors, part of our skill lies in negotiation with the prosecuting bodies.  We will be able to apply the facts of the allegations in your case with the guidance to the prosecution and ask for a favourable review of your case.

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

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VHS Fletchers offices across the East Midlands

Alternatively you can contact us using the form below.

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News

Prosecution time limits and abuse of process

prosecution time limits
Justice delayed..?

Prior to his sacking, the former Defence Secretary Gavin Williamson suggested a 10-year time limit or Statute of Limitations on the prosecution of soldiers accused of murder during military engagement.

This proposal was in response to reports that British soldiers may face prosecution over deaths during the Northern Ireland troubles in the 1970s and 1980s.

So, what prosecution time limits currently apply in England and Wales?

Offences can be categorised into three groups:

  • Summary only offences – offences that can only be tried in the magistrates’ court.
  • Indictable offences (or either-way offences) – offences that may be tried either in the magistrates’ court or the crown court.
  • Indictable only offences – offences that may only be tried in the crown court.

Summary Only Offences

In general, proceedings must be commenced within six months of the criminal act that is being complained of.

There are however many exceptions to this rule.  These exceptions in particular will apply to the following types of offence:

They allow proceedings to be commenced much later, and in some cases as long as three years after the offence was committed, where certain conditions are met.

There is a great deal of case law concerning the calculation of time limits and it is common to see offences commenced in breach of the rules. When these breaches are identified this will bring the prosecution to a halt.

With the new Single Justice Procedure for road traffic, railway and other offences we can see an alarming number of cases being charged in breach of statutory time limits.

If you have any doubts then please check with us immediately.

All other cases

prosecution time limitsIn relation to indictable and indictable only cases  the starting point is that there is no time limit in bringing the prosecution.

It is very common to see offences, particularly sexual offences, prosecuted a great many years after the events complained of.

Alleged historical sexual and other offences can create significant difficulties for defendants so many years after the alleged events.  It can, for example, make defences such as alibi all the more difficult to establish.

As time passes witness memory and recollection will fade.  False accounts can seem true.  Mistakes in memory will be made.  Important evidence can disappear.

The response of the Court of Appeal to these defence complaints is that they are a ‘matter for the jury’.  The trial judge can deal with them by directions to the jury as to the problems created.  A jury should only convict if it is sure.

What can the defence do?

Wherever possible we will look to explore other appropriate avenues at trial to redress the balance.

This may take the form of an application to exclude evidence.  Alternatively, in some cases, an application can be made to bring the case to a halt.  This is called ‘staying proceedings’.  To continue to allow the prosecution would amount to an ‘abuse of process’.

Is an abuse of process argument easy to win?

Unfortunately an abuse of process argument is notoriously difficult to win. This leads many to believe that they are therefore mostly pointless.  As a result, many won’t bother to make them at all.

This is not a strategy that we believe in, and we will always advance arguments where there is a prospect of success.

In Attorney-General’s Reference (No 1 of 1990) [1992] QB 630 the court held:

“Firstly, it is for the defence to prove, on the balance of probabilities, that the continuation of the proceedings would amount to an abuse of the process of the Court and should, therefore, be stayed.

Secondly, stays of proceedings in such circumstances should be the exception rather than the rule, and where the application for a stay is based on delay a stay should be an exception rather than the rule even if the stay could be said to be unjustifiable. Still more rarely should a stay be imposed in the absence of any fault on the part of the complainant. No stay should be imposed unless the defendant shows, on the balance of probabilities, that because of the delay he will suffer serious prejudice to the extent that no fair trial can be held.

The third proposition of law that seems to me to arise from the authorities is that the judge considering an application to stay of this kind may have regard to his powers to exclude evidence, to give appropriate directions to the jury about the delay, and in particular to give directions to the jury about the difficulties which the delay has presented to the defence.

The fourth relevant proposition of law, as it seems to me, is that the judge may also take into account the extent to which a prosecution case depends on contemporaneous documents. The more it does so, the more difficult it will be for a defendant to establish that an indictment will be stayed.

Fifthly, where delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints about sexual abuse.”

A seemingly more liberal approach was taken in R (Flaherty) v City of Westminster Magistrates’ Court [2008] where a delay of 2 years due to the inactivity of the prosecution during enforcement proceedings was held to amount to an abuse of process.

Separately in Ali v CPS [2007] a delay of 7 years was sufficient to support a stay for abuse where documentary evidence pertinent to the complainant’s credibility had been lost.

Instruct a specialist in criminal law

We can begin to advise you as to the potential effect of delay in your case as early as in your interview with the police.  We cannot stress enough that our legal advice and representation is always free to you if you are interviewed.  This remains true whether you are under arrest or being interviewed voluntarily.

You can read about a case stopped for an abuse of process for a different reason here.

Our specialist criminal lawyers can advise you on whether you have a defence, and help you put that defence forward, which may be particularly difficult where a number of years have passed.  We will advise you on the prospects of success and instructing any experts that may help along the way.

As a result, if you are arrested or know that the police wish to speak to you about a criminal offence then make sure you insist on your right to free and independent legal advice.

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

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

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

 You can find your nearest office here.

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News

Prosecutions following Gosport Hospital enquiry?

A recent news story about the Gosport War Memorial Hospital highlighted the importance of pharmacists and their regulated staff seeking independent legal advise if being interviewed by the police.

The Gosport War Memorial Hospital Inquiry

Kent and Essex Police have announced that they are re-opening their investigation into 465 deaths at the Gosport War Memorial Hospital.

The inquiry findings are being considered by the CPS and they will decide whether or not the police should instigate any investigation.

This decision following the inquiry highlights the very difficult position that pharmacists can find themselves in. The report reminds us of the case that involved Dr Harold Shipman which led to subsequent proceedings before the Royal Pharmaceutical Society by pharmacist Ghislaine Brant.

Questions raised about pharmacists’ actions

gosport war memorial hospitalThe media have been quick to raise questions as to the actions of the pharmacy staff at the Gosport War Memorial Hospital.  They have queried the role that they may have played in the dispensing and supply of the high level of painkillers apparently featuring in this case. The suggestion has been made that the pharmacists employed at the time showed little regard for the supply of controlled drugs to patients.

Whilst this is clearly a tragic situation, it should not be forgotten that pharmacists are professional people undertaking extremely important work on behalf of the community. They respond to prescriptions received from doctors and make judgements prior to their decision to dispense and supply medications based on the limited information before them.

Some years down the line it may be difficult to see what, if any, documentary evidence exists to help the pharmacist explain their actions at the time. This obviously makes matters more difficult for a pharmacist to defend.

In such circumstances legal advice will make a significant difference to the outcome of a case.

Free and Independent legal advice is available for pharmacists

Cases alleging criminal liability against pharmacists or their staff are always likely to be complex and require sensitivity as there will often have been a death.

Our specialist lawyers can advise you on the evidence in the case, whether you have a defence, and help you put that defence forward.  We will be able to advise you on the prospects of success and navigating a successful path through what can be a long and stressful investigation and court process. We will also be mindful of the potential regulatory impact of any adverse finding in your case.  We are able to provide you with advice in relation to such proceedings.

As a result, if you are a pharmacist and are arrested or know that the police wish to speak to you on a voluntary basis about any criminal offence then make sure you insist on your right to free and independent legal advice.

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

gosport war memorial hospital
Crime and Regulatory solicitor Martin Hadley

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.

Please contact our regulatory defence expert Martin Hadley on 0115 9599550 or by email here.

Alternatively you can use the contact form below:

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News

Obscene articles – what is the law against publication?

obscene articlesProsecuting those who publish obscene articles is not prudish, despite what certain commentators would argue.  It is an offence under section 2 of the Obscene Publications Act 1959.

The maximum sentence of five years’ imprisonment for offences involving obscene articles may be warranted for activities which have disturbing and harmful knock-on effects.

Laws of this type remind us that free-speech and expression is subject to lawful limitations.

The relevant legislation

According to section 1 of the 1959 Act, one must decide whether the effect of the object in question is:

“…such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”

An important line taken in the case law is that obscene articles must go beyond simply being rude or disgusting.  The impact upon those who come into contact with and deal with the material is central to the question.

Defining the terms

In the case of Calder & Boyars Ltd from 1968, the court considered that the term ‘obscenity’ could encompass a wide range of misconduct.

The 1972 case of DPP v Whyte noted that while not everybody must be offended or influenced by the material the effect must be more than ‘minuscule’.

What does the term ‘article’ include?  It can involve virtually anything capable of displaying some kind of information and/or broadcasting audio and video content. That description includes things which are not primarily made for these purposes.

The term ‘publish’ has been interpreted remarkably widely.  For example, a single sale made by a developer of obscene photographs or creator of paedophilic writing to one customer can constitute publication. (Taylor [1995]; GS [2012]).

Additionally, the court decided in the case of Sheppard from 2010 that it was “fundamentally misconceived” to argue that ‘publication’ requires a ‘publishee’. It emphasised that this is a separate body of rules from libel law, so applying the same approach is wrong.

Expert evidence and obscene articles

While expert evidence is generally inadmissible in terms of what constitutes something obscene, it may be employed where the jury would otherwise not understand the effects of the obscenity upon a particular group (DPP v A & BC Chewing Gum Ltd [1968]).

What if you are investigated for this offence?

As you can see such offending is treated seriously by the courts so it will be important that you seek early advice from a criminal law solicitor.  The law is also complex and will involve an exercise of expert judgement.

We assess the evidence on your behalf, advise you as to plea and can give you an indication of likely sentence if convicted. We will advise you as to whether any defences are available.

As a result, if you are arrested or know that the police wish to speak to you about an offence relating to obscene articles 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.

 You can find your nearest office here.

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Admissability of Evidence argument at Chesterfield Magistrates

admissability of evidenceWe have previously written about the increase in prosecutions over recent years where there is no statement from the alleged victim in the case.  The victim might not be supporting the prosecution or may even be unknown.  This will lead to arguments over the admissability of evidence.

The reasoning is that even though a victim is unwilling to assist the Prosecution, a person should not be able to avoid responsibility for offending that they have committed.  Of course, there are a number of risks to proceeding without evidence from the person who ought to know best what, if anything, happened.

Prosecution rely on principle of Res Gestae

In order to present such cases the prosecution will often rely on a rule of evidence called Res Gestae.  This allows hearsay evidence that would usually not be allowed in court to be used as admissable evidence.

You can read more about this rule of evidence here.

Unfortunately we have noted that the prosecution seek to rely on this exception to the usual rules of evidence in a number of cases where it doesn’t apply.

As a result it is vital to have an experienced solicitor who is able to argue your case in Court to try and avoid this from taking place.

Recent case defended by Chesterfield crime solicitor

Chesterfield Crime Solicitor Kevin Tomlinson was recently presented with such a scenario.  His experience told him that the prosecution was trying to admit evidence in circumstances where it was not admissable.

His skill and expertise as an advocate persuaded the Magistrates that he was right.  The evidence was ruled inadmissable and his client was found not guilty.

Domestic violence allegations

Kevin’s client faced charges of common assault and criminal damage within a domestic setting.  Police officers attended the alleged victim who gave an account implicating stating that our client was responsible for the offending.

She alleged that he had been aggressive and threatening towards her when she returned home with a friend after a night out.  After the friend left he had then assaulted her in the bedroom and caused damage to a wall and perfume bottle.

The police had obtained a recording of the 999 call.  The initial complaint had also been recorded on police bodycam footage.  Finally she made a written witness statement.  Here friend had also made a statement describing our client’s behaviour before she left.

During the course of the investigation, the complainant had provided a further statement stating that she no longer supported the prosecution and wished to withdraw her complaint.

From the outset of the case our client had set out a defence.  He told the police that he had not done what was alleged against him and was therefore not guilty of the offences.

Key witness did not attend the trial

In light of the later statement taken from the complainant it was not surprising that the complainant failed to attend Court for the trial. The supporting witness also failed to attend.

admissability of evidenceDespite this, the prosecutor informed Kevin that they wished to proceed with the case.  They intended to use the account provided by the complainant in the 999 call as well as what she told the police upon their arrival.  The reasoning was that this evidence would be admissable using res gestae.

Kevin argued against the admissability of evidence relating to these allegations.  The key requirement, that the witness was so overcome with circumstances of the situation that she could not have made the allegations up, did not exist in this case. She was calm during both the call and the conversation.  The assertion that the allegation could not have been made up did not stand up to scrutiny.

Additionally, Kevin was able to argue that instead of trying to admit evidence in this way the prosecution, who had known for weeks that the witness did not intend to attend Court, should have taken the appropriate steps to have her there.  The doctrine of Res Gestae should not be used to avoid calling witnesses as it prevents the prosecution challenging the evidence.

Not guilty verdict after trial

admissability of evidenceKevin’s argument found favour with the Court who refused the Crown’s application meaning the Prosecution had no option but to offer no evidence against Kevin’s client.

This case highlights the importance of instructing a solicitor.  It is important that you do not rely on a solicitor appointed by the court as their responsibilities to you in your case are limited.

Had the defendant in this case been unrepresented it might be unlikely that they would effectively challenge the admissability of evidence of this nature and the outcome could have been very different.

Instruct an solicitor who is an expert in the admissability of evidence.

Criminal trials will always feature a certain level of complexity.  The best way to prepare for trial is to seek legal advice at the earliest possible moment.

If you are arrested or know that the police wish to speak to you about an offence of 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.

A further example of a successful argument against the admissability of evidence can be found here.

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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What to expect as a witness in court

If you have provided a statement for the prosecution or for the defence you may be called as a witness in court to give evidence at the defendant’s trial.

Is there help available for me as a witness in court?

defence witness in courtThe Witness Service can provide assistance for any witness who has to attend court. This support can be both practical and emotional. They can provide information about the court process, show you the courtroom prior to the trial and assist with any expenses claim.

If you are a prosecution witness the Crown Prosecution Service witness support unit will be in touch with you and will provide contact details for witness support. If you are a defence witness the solicitor representing the defendant can provide you with support and also provide the contact details for the local witness service.

What happens at court?

 When you attend as a witness in court, you can sit in a separate witness room rather than the general waiting area if you wish. You will be spoken to by the prosecution or defence lawyer, as appropriate, before the trial starts.

Will I be told what to say?

 Whilst the lawyer will be able to provide you with information on trial procedure, layout of the court and the roles of those involved they cannot “coach” you on the evidence you will give as a witness in court. There are very strict rules about training witnesses because this could have a potentially negative effect on your evidence.

Can I read my statement?

You will be provided with a copy of your statement prior to the trial so that you can read through it before you give evidence. You will not usually be allowed to have it with you when you give evidence though. If the rules of evidence allow, you may be able to refer to your statement during evidence in order to refresh your memory.

Can I speak to any other witnesses?

 If there are a number of witnesses, you will not be allowed to communicate with anyone who has given evidence while you are still waiting to do so.

If you are a defence witness, you should also not discuss anything about the trial with the defendant once the trial hearing has started.

The prosecution and defence lawyers are not allowed to discuss any evidence that has been given with you before you give your evidence.

What happens in court?

prosecution witness in courtYou will be called into court at the appropriate time and asked to swear on a holy book or affirm that you will tell the truth. You will then be asked questions by the prosecutor first if you are a prosecution witness and then by the defendant’s representative, or vice versa if you are a defence witness. If the defendant is not represented, you may be asked questions by a court appointed lawyer in his place if the court do not feel it is appropriate for him to ask you questions directly.

Once you have finished giving evidence you may be released from court or you can stay in the public gallery to watch the remainder of the trial.

I’m really worried, do I have to attend court?

 If you think that you would benefit from “special measures” such as screening from the defendant or giving evidence from remote video link you should contact the prosecution, defence solicitor or court as appropriate.

A witness summons can be issued if the court is aware you do not want to go to court.  This is something that you should speak to a solicitor about. If you fail to attend court in answer to a witness summons, then you may be arrested and brought to court.

Contact a criminal law specialist about being a witness in court

It may be that you have given a witness statement to the police and received a witness summons.  Alternatively it might be that you are thinking of doing so but worried about the potential consequences.

You might have provided our office with a statement in respect of one of our clients, or are considering doing so and want to discuss this further.

Contact your nearest office or the office preparing the defendant’s case to discuss any of the matters further.

VHS Fletchers East Midlands offices

Alternatively please use the contact form below.

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News

Defending a charge of Threats to Kill

How many times have you said something like ‘I’m going to kill you’?  Most of the time this will simply be something said in the heat of the moment rather than genuine threats to kill.

threats to killIf, however, you make such a threat and intend that another would fear it would be carried out then you will be committing an offence of making threats to kill.

The offence is under section 16 of the Offences Against the Person Act 1861. Even though the legislation is very old it is still a commonly used charge. The key part of the offence is that a person intend another to fear that the threat would be carried out.

Is there a defence to threats to kill?

 If you make the threat in self-defence or in the prevention of crime you may have a defence of lawful excuse.  Whether any threat made was reasonable in the circumstances will be a matter for the magistrates or jury.

Equally, a comment made in temper or jest, with no intent to make anyone fear it would be carried out, would not be an offence.

Evidence of previous history between the parties is admissible as tending to prove that the defendant intended his words to be taken seriously (Williams (C.I.), 84 Cr.App.R. 299, CA.)

What if the threats to kill are made to someone else?

 You do not have to make the threat directly to the person, it may be through a third party.

For example, a man in prison made threats to a prison officer that he was going to kill his ex-girlfriend, he was convicted and received five years imprisonment. The threats were taken especially seriously as he had a previous conviction for the manslaughter of his wife.

What sentence can I expect?

The offence can encompass a wide range of offending so in sentencing the court will look at a variety of factors.  These can include the following examples:

  • was there a weapon?
  • was it a threat in the heat of the moment?
  • the impact on the victim
  • repeated threats or a single calculated threat?

An example is a case involving threats to kill made to an arresting officer.  The offender knew detail about the officer’s home life which threats to killadded weight to the threats.  As a result he was sentenced to 2 years imprisonment.

When a weapon is present when threats are being made the offence is much more serious.  An offender who threatened his former partner with a sword received five years imprisonment.

Sentences imposed can range from a community order for an offence that constitutes one threat made in the heat of the moment, through to imprisonment up to a maximum of 10 years for repeated threats or the presence of a weapon.

How can we help defend in a case of threats to kill?

 As you can see, making threats to kill is a serious allegations and the law relating to defences can be 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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