Tag Archives: prosecution

News

Penalties for breaches of environmental law

Although some breaches of environmental law amount to criminal offences, not all do.

There are a wide range of potential penalties that are quite different to those usually faced for standard criminal offences. Even where a criminal offence has been committed, court action and all that it entails can very often be avoided.

It is therefore vital that you take legal advice at the outset of any Environment Agency investigation, as we are best placed to ensure you exit with the least possible penalty in the event that you have committed any wrong.

Prosecution is said to be a last resort, and any enforcement action has to be proportionate and appropriate. This article is intended as a guide to the penalties that are available.

breaches of environmental law

Criminal and offence specific responses to breaches of environmental law

A Warning – this will set out the offence believed to have been committed, the corrective action expected to be taken within a set time and what will happen if action is not taken.

A Formal caution – can be imposed where a prosecution could be commenced, the offender admits the offence and consents to be cautioned.

Prosecution fixed penalty –  can be imposed for certain offences.  If it is not paid a prosecution can follow.

Prosecution – the Agency must be sure there is a realistic prospect of conviction, and it is in the public interest to prosecute.

Civil sanctions

When the Agency decides to impose a civil sanction (except a stop notice) they will:

  • serve a notice of intent
  • provide an opportunity to make written representations within 28 days
  • consider any representations
  • make a final decision and notify you with concise reasons for the decision.

 A Compliance notice – this requires the offender to come back into compliance and can also apply where advice has been given but not followed.

A Restoration notice –  a formal notice requiring the offender to put right any damage caused by an offence. Steps to take will be set out in the notice to rectify the situation within a set time.

A Fixed monetary penalty – can be issued where advice has been given and not followed or for minor offences.

Variable monetary penalty – issued for more serious offences where it is not in the public interest to prosecute. This penalty may also be issued in conjunction with a compliance or restoration notice.

Stop notice – requiring an activity to be stopped immediately, it will set out action to be taken and will remain in force until the action is taken.

Enforcement undertaking – a voluntary offer by the offender to put right the effects of the offending behaviour. If accepted the offer becomes a binding agreement. If the offender complies then a prosecution cannot be taken.

How we can help with breaches of environmental law

breaches of environmental law
Nottingham crime and regulatory solicitor Martin Hadley

Not all penalties are available for all breaches or offences, and representations can be made to the Environment Agency about the most suitable penalty. We can assist you with those representations.

Please contact crime and regulatory solicitor Martin Hadley on 0115 9599550  at our Nottingham officer or use the contact form below.

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News

Police trained to hide helpful evidence within sensitive material schedules

Following on from the revelations about failures in disclosure identified last year, on 3 April The Times published further information about the scale of the failure by the police and sensitive materialprosecution to disclose evidence vital to fair trials.  It is claimed that the failure to disclose such key evidence is both routine and deliberate, including hiding evidence within sensitive material schedules.

These reports are against a background of interest in the criminal justice scheme, including a BBC Survey, the publishing of a Charter for Justice and a campaign to send every sitting MP a copy of the recently published book by the Secret Barrister about the crisis in the criminal justice system.

A dossier has been produced that draws on the reports of a number focus groups held with the police, prosecutors and judges.  The file also includes the results of a survey of prosecutors.  It was obtained by the charitable organisation The Centre for Criminal Appeals.

Helpful evidence hidden on sensitive material schedules

The research has identified a commonly held view that the defence is not entitled to see evidence that might undermine the case against an accused.  Tactics are adopted by the police to stop it being handed over.  At least one force trains its officers to hide such material in a ‘sensitive material’ schedule which means the defence are unlikely to discover that is exists and disclosure may well be avoided.

One comment from a police focus group was ‘If you don’t want the defence to see it, then [evidence] goes on the MG6D’, this list of ‘sensitive material’.

A prosecutor is quoted as saying that ‘In even quite serious cases, officers have admitted to deliberately withholding sensitive material from us and they frequently approach us only a week before trial.  Officers are reluctant to investigate a defence or take statements that might assist the defence or undermine our case”.

Material should only appear on a sensitive material schedule where the disclosure office believes its disclosure ‘would give rise to a real
risk of serious prejudice to an important public interest.’  The reason for that belief should also be stated, and the officer must sign off on the schedule.

It is envisaged that such sensitive material will not just be that which helps the defendant. Instead, examples are:

  • material relating to national security;
  • material received from the intelligence and security agencies;
  • material relating to intelligence from foreign sources which reveals sensitive intelligence gathering methods;
  • material relating to the identity or activities of informants, or undercover police officers, or witnesses, or other persons supplying information to the police who may be in danger if their identities are revealed;

As a result it is unlikely to include evidence that simply points to the innocence of a defendant.

Prosecution also at fault in disclosure decisions

However fault is also identified on the part of prosecutors.  Sometimes this is due to the volume of cases, in combination with a lack of time to do the job properly, poor quality police investigations and the pursuit of ‘wrong’ priorities.

It remains to be seen whether the new Director of Public Prosecutions who will replace Alison Saunders when her contract expires in the autumn will have the resources to effect any meaningful change.

Instruct VHS Fletchers to ensure adequate disclosure

A judge within one of the focus groups observed, ‘There seems to be an idea that the defence is not entitled to see things but where the defence press matters, this yields results.’

As a result, until the culture changes and more resource is made available, to a great extent an accused will be dependent upon their sensitive material scheduleslawyer identifying whether material is likely to exist and make an appropriate application for disclosure.

Our team of experienced Crown Court litigators and advocates will ensure that disclosure in any particular case is meaningful, rather than, as one prosecutor put it, ‘more of an administrative exercise‘.

You can read about two recent cases where our requests for disclosure made a difference here and here.

Find your nearest office here or use the contact form below.

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News

Dangerous dog prosecutions – avoiding the destruction of your dog

dangerous dog prosecutionsIt is often said that there is no such thing as a dangerous dog, only a dangerous owner.  While the criminal law often refers to a ‘dangerous dog’,  the offences pursued in dangerous dog prosecutions relate to a dog being ‘dangerously out of control’.

Section 10 of the Dangerous Dogs Act 1991 states that:

‘a dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person (or assistance dog), whether or not it actually does so.’

Penalties

The penalties for ‘dangerous dog’ offences are severe.  They include  imprisonment of up to 14 years where death is caused.  What is is not often understood is that an offence may lead to the destruction of the dog as well.

A discretion to order destruction?

In relation to some offences the court may order destruction.  In others, the court must order destruction unless assured (by imposing strict conditions) that the dog would not constitute a danger to public safety.

When deciding whether a dog would constitute a danger to public safety, the court—

(a) must consider—

(i) the temperament of the dog and its past behaviour, and

(ii) whether the owner of the dog, or the person for the time being in charge of it, is a fit and proper person to be in charge of the dog, and

(b) may consider any other relevant circumstances.

Avoiding Destruction of a ‘dangerous dog’

defending dangerous dog prosecutionsIn all cases where a court is considering destruction, attention must be drawn to the court’s power to order instead ‘contingent destruction’.  This will prevent the dog’s destruction provided that the conditions imposed are met.

The key case in dangerous dog prosecutions remains R v Flack [2008] EWCA Crim 204 where the following criteria were established:

“The relevant principles that can be made in respect of a dog whose owner has been convicted under section 3(1) of the 1991 Act of failing to keep a dog under control in a public place are that:

(1) The court is empowered under section 4(1) of the 1991 Act to order the destruction of the dog.

(2) Nothing in that provision shall require the court to order destruction if the court is satisfied that the dog would not constitute a danger to public safety: section 4(1)(a) of the 1991 Act.

(3) The court should ordinarily consider, before ordering immediate destruction, whether to exercise the power under section 4A(4) of the 1991 Act to order that, unless the owner of the dog keeps it under proper control, the dog shall be destroyed (“a suspended order of destruction”).

(4) A suspended order of destruction under that provision may specify the measures to be taken by the owner for keeping the dog under control whether by muzzling, keeping it on a lead, or excluding it from a specified place or otherwise: see section 4(a)(5) of the 1991 Act.

(5) A court should not order destruction if satisfied that the imposition of such a condition would mean the dog would not constitute a danger to public safety.

(6) In deciding what order to make, the court must consider all the relevant circumstances which include the dog’s history of aggressive behaviour and the owner’s history of controlling the dog concerned in order to determine what order should be made.”

What we can do to help

It is unlikely that legal argument alone will suffice to convince a court to order contingent destruction. In almost all dangerous dog prosecutions you will need the assistance of an expert in dog behaviour, alongside expert advocacy. We can arrange for the preparation of suitable expert reports and provide the advocacy for you.

Instruct an expert in defending dangerous dog prosecutions

If you are facing criminal proceedings that relate to an allegedly dangerous dog then please contact us as soon as possible. Our solicitors are well versed in this aspect of the law and will ensure your best defence is put forward before the court.

This will also include the best argument possible to ensure that your dog is not destroyed.

You can find your nearest office here to seek our specialist advice. 

defending dangerous dog prosecutions solicitors
Our offices across the East Midlands

Alternatively, you can use the contact form below.

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News

Disclosing private sexual images or ‘revenge porn’

“Revenge porn”, more formally known as the offence of disclosing private sexual images, is the criminal act of posting online intimate sexual pictures/video of a person without their consent.

It carries a potential prison sentence of up to 2 years.  We await the outcome of the consultation into a sentencing guideline for this offence.

Revenge porn used to cause maximum distress

In the meantime, however, it is clear that the most serious type of revenge porn will be conduct that is intended to maximise distress.  This might be where images are sent to  victim’s family who are very religious, or to a victim’s young siblings.  Offending that involves setting up fake internet profiles purporting to be the victim and inviting abuse or sexualised contact from strangers will also be treated very seriously.

At the other end of the sentencing range will be impulsive posting of revenge porn or where the offending is by those affected by a mental disorder or learning disability.

Aside from the manner of the offending, a court will also consider level of harm caused in any particular case.  Where very serious distress has been caused, or a victim is particularly vulnerable, or there had been a very real practical impact on a victim then these factors will all increase the seriousness of the offence and therefore the sentence.

Such cases will include instances of images being posted a victim’s business website, or circulated to business contacts.

Case Study

The offender and the victim had briefly been in a relationship which ended acrimoniously. He sent the victim an email which contained a naked picture of her and said he would post it on social media to
‘teach her a lesson’.

She discovered that he had created a false account in her name and used the naked photograph as the profile picture. He had also posted three other intimate photographs of her. The false account had been used to contact 12 of the victim’s friends. She contacted the social media company and they agreed to close the account but this took two days.

A few weeks later B set up another false account in the same way and then he used a different social media platform to send the photograph to some of the victim’s work colleagues.  The victim and her friends contacted the social media companies and eventually had the photographs removed. In total the naked picture of her was live on social media sites for 18 days.

The victim reported that the incidents had left her feeling extremely embarrassed and anxious.

The offender made admissions in police interview and pleaded guilty at the first opportunity.   On the proposed guideline he could expect a sentence of 20 weeks immediate imprisonment.

 

Another reason to think twice about revenge porn

If the prospect of a prison sentence is insufficient deterrent, a recent case shows that there is another good reason to think twice before exacting this type of revenge on a former lover.

Celebrity vlogger Chrissy Chambers took the matter one step further in launching an action in the High Court designed to secure no further infringement of her rights as well as substantial financial damages.

Her ex-partner allowed six sexual videos to be uploaded to the adult site redtube.com.  Ms Chambers was identified by name in three of those videos.  The videos were filmed in her home, but without her consent, and showed sexual activity between her and her then partner.

She argued in court that this conduct had caused her ‘serious distress’ resulting in post-traumatic distress disorder.

In the 19 months that the videos were online a large number of people had viewed them, including some people who wrote to her expressing their displeasure at the belief that she was ‘intentionally involved in pornography’.  These viewers were affected to such a degree that they did not wish to continue watching her YouTube channel.

High Court Financial Settlement

In a settlement agreed by the High Court on 18th January 2018, her partner accepted that the posting of the videos was in breach of confidence, misuse of private information and a breach of her Article 8 rights (the right to privacy).  To provide future protection, copyright in the videos was transferred to her.

While this is not the first action of its kind (singer Tulisa Contostavlos brought a similar case in 2012), it is notable that Ms Chambers has actively sought publicity about this case, when she could have chosen anonymity.

The legal action was funded by way of a crowd-funding campaign, itself designed to raise public awareness of this issue.

By doing so, she has put this issue into the public domain, and it may well act as a deterrent to those thinking of doing something similar in future.  It is also a reminder to victims that there could be an easy route to substantial damages, provided of course that the person committing this unlawful act has the means to pay them.

Contact us for specialist legal advice about disclosing private sexual images

It may be that you acted without thinking, or it may be that you are not responsible for the offending.  Either way, we will be able to provide you with advice and representation whether your case is a guilty plea or will be prepared for trial.

Please contact one of our experts in criminal law at your nearest office.  Alternatively you can use the contact form below.

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News

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.”

 

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.

 

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 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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News

Environment Agency Clamping Down on Criminal Activity

Environment Agency Clamping Down On Criminal Activity

People who illegally dump waste have cost land and property owners millions of pounds in the last year, according to the Environment Agency.

The financial impact, which relates to the cost of removing waste dumped in fields and empty commercial properties lawfully, could be even higher if land is contaminated or insurance premiums rise as a result. Dumped waste is also a major fire risk.

What is being done?

 

In a bid to reverse this problem, the Environment Agency is reaching out to property and land owners, commercial property agents, trade associations and local authorities. Their aim is to warn of the dangers posed by waste criminals and advise them, their clients and their members how they can better protect themselves. It is likely that this increased level of activity will lead to more criminal investigations and prosecutions.

Jamie Fletcher, from the Environment Agency said:

“Waste criminals operate throughout the country, offering to remove waste cheaply and then dumping it in fields or empty warehouses. They tend to move to new areas as enforcement agencies become wise to their activities.

We know it’s only a matter of time before they target us again so we’re sending out a strong message: Waste criminals are not welcome here and we’re doing everything in our power to deter and catch them.
We can’t do it alone.

We work closely with partners to share intelligence on illegal waste activity. And we’re encouraging everyone to do their bit: for property and land owners to be vigilant and better protect themselves and for all businesses, organisations and individuals to manage their waste responsibly, preventing it from getting into criminal hands in the first place.”

Land and property owners are advised to:

  • Check any empty land and property regularly and make sure it is secure.
  • Carry out rigorous checks on prospective and new tenants. Land and property owners have a responsibility to ensure anyone leasing their land/property complies with regulations. They may be committing an offence by allowing waste to be stored on land or property without the relevant permissions and could leave them liable to prosecution.
  • Be vigilant and report any unusual behaviour.

Change on the roads

In a related development, the Environment Agency and Driver and Vehicle Standards Agency (DVSA) have officially agreed to carry out joint operations across England to cut the transportation of illegal waste and to improve road safety.

The memorandum of understanding will see the Environment Agency and the DVSA using their combined enforcement powers to tackle the transportation of waste to illegal or poorly-performing permitted sites.

The agreement will involve:

  • DVSA staff located within Environment Agency teams to ensure a coordinated and effective approach
  • sharing of information to increase the effectiveness of roadside enforcement on waste industry vehicles up and down the country
  • providing enforcement teams with intelligence relating to waste industry operators
  • identifying high risk or illegal goods vehicle operators involved in waste transport
  • reducing the number of seriously and serially non-compliant waste industry vehicles on England’s roads.

Legal Advice for Business Defence

There are thousands of commercial properties across the Country thought to be empty, which are owned by businesses and organisations, including fund management companies and local authorities.

The Environment Agency is also advising businesses and organisations of their responsibility to ensure their waste is managed appropriately. Anyone who produces, stores and manages waste is obligated to ensure waste does not cause harm to human health or pollution to the environment under Duty of Care legislation.

Waste crime diverts as much as £1 billion per annum from legitimate business and the treasury. Since April 2011 the Environment Agency has invested £65.2 million nationally to address it. Its specialist crime unit uses intelligence to track and prosecute organised crime gangs involved in illegal waste activity and to ensure any necessary action is taken against them.

Action you need to take

Environmental crime and regulation is a specialist area of business defence law.  Whether you need advice about your legal obligations, or representation if facing an investigation or prosecution, our team of lawyers is here to provide it.

The penalties in relation to environmental offences can be very high, sometimes reaching the hundreds of thousands of pounds, and in some cases resulting in imprisonment. For example, United Utilities was fined £666,000, with costs of £32,000 after pleading guilty to pollution offences at Manchester Crown Court.

Contact a Business Defence Solicitor

Nottingham business defence solicitor Martin Hadley
Nottingham crime and regulatory solicitor Martin Hadley

With cases such as this being decided against companies, you cannot afford to leave your case to chance.  Please contact business defence solicitor Martin Hadley on 0115 9599550 or alternatively use the contact form below.

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News

Prosecution not in public interest argues Ilkeston legal aid solicitor

Ilkeston legal aid solicitor Chris Evans successfully persuaded the prosecution that it would not be in the public interest to prosecute his client for an allegation of common assault.

Was the prosecution in the public interest?

In order to bring a prosecution two tests must be satisfied.  The first is the evidential test.  The second is the public interest test.

In Chris’s case, the evidential test was met.  His client was at a party and following an argument she had assaulted her boyfriend.  The assault was captured by police bodycam footage.  She had also been interviewed without the benefit of free legal representation in the police station.

Admissions to the assault had been made in that interview, although she had gone on to say that her boyfriend had tried to prevent her leaving the party

Prosecution persuaded to withdraw the charge

Despite these admissions, Chris believed it was worth speaking with the prosecution about whether his client should be prosecuted.  He argued that the following points were relevant to the public interest:

  • there was an element of provocation.  Her boyfriend had engaged in a sex act with the hostess of the party in a hot tub.
  • this led to the altercation which was captured on the bodycam footage
  • none of the witnesses in the case, including the boyfriend, wanted to take matters further
  • her admissions were qualified as she had said that her boyfriend was unlawfully preventing her from leaving the party
  • she was young, of good character, and a conviction or caution would have harmed her career prospects.

Contact an Ilkeston legal aid solicitor

VHS Fletchers is the only firm offering criminal legal aid in Ilkeston.  We provide free advice and representation under the legal aid scheme at both Derby St Mary’s Wharf and the Nottingham Bridewell police stations.  Our lawyers also provide representation across the East Midlands and nationwide.

Should you face proceedings before the Magistrates’ or Crown Court we will provide you with full advice about how best to fund your case.  This will include assistance in completing a legal aid application where appropriate.

prosection not in public interest says ilkeston legal aid solicitorYou will not have to travel out of Ilkeston to give instructions to our local solicitors which we believe will be more convenient to you.

If you wish to instruct Chris Evans or one of our other lawyers at our Ilkeston office then please telephone 0115 9441233 or use the form below.

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News

DWP Prosecution – Charges Withdrawn

Nottingham crime solicitor Alex Chapman represented a client before Nottingham Magistrates’ Court for allegations of fraud.   This was a DWP prosecution. The particular circumstances were such that he was able to persuade the prosecution that it was not in the public interest to continue with the prosecution.  His client therefore kept her good name.

DWP Prosecution alleges £17 000 fraud

The allegations faced were charged under the Fraud Act 2006.  The offence were based on a fraudulent claim for benefits between 2011 and 2013.  The case was serious because there had been an over payment of benefits of approximately £17 000.

DWP prosecution nottingham criminal defence lawyerAlex’s client had been interviewed by the DWP,  Shortly afterwards she had been offered a job abroad so left the country.  She was summonsed to attend court in 2014 but was unable to attend the court dates.  As a result the Magistrates’ Court had no alternative but to issue a warrant for her immediate arrest.

Despite failing to attend court our client had done her best to put herself in a favourable position.  She had paid off the debt in its entirety while in work although this had taken her two years to achieve.  She also made contact with the court to fix a date to surrender to the warrant.

All of the money repaid by our client

It was at this point that we were instructed and she informed us of the date.  Once Alex was involved he gave her advice as to the likely sentence for this offending.  As this was a prosecution under the Fraud Act 2006, the position was immediately more serious than had it been a prosecution for over-claiming benefit.  The position was aggravated because of the allegation that the claim had been fraudulent from the outset.  The Magistrates’ were likely to commit the matter for sentence upon a guilty plea because of this, and custody was likely.

Representations lead to withdrawal of DWP prosecution

At court Alex took the opportunity to speak with the prosecutor.  His discussions were designed to see whether the prosecution could be persuaded to abandon the prosecution as not being in the public interest.  This would be because:

  • his client was of good character
  • all of the over-paid benefits had been repaid
  • the offending was several years old
  • the chances of re-offending appeared slight
  • the fact that she lives abroad would mean that community elements of any sentence could not be imposed

Alex’s representations were successful so proceedings were withdrawn.  As a result, all the attendant risks for his client vanished and she kept her good name.

Affordable fixed fee representation

Alex’s client was not financially eligible for free advice and representation before the Magistrates’ Court.  As an alternative he was able to provide her with a fixed fee cost of his representation. She could budget for these costs because of this.

Positive Client Feedback

Perhaps unsurprisingly, bearing in mind the result that Alex achieved on behalf of his client, she was prompted to provide the following feedback:

“Words cannot describe how thankful I am to you. It’s an incredible feeling and I appreciate your help and support. ” 

 “I would like you to bear in mind that if at any point in your career you require a client reference, you will always have my positive feedback on your fantastic work.”

Contact a criminal solicitor in Nottingham

Whether you face an interview under caution with an investigator or a DWP prosecution before the Magistrates’ or Crown Court you will want to instruct an experienced criminal solicitor.  If you do so you will have the confidence that they will know what can best be achieved on your behalf in the circumstances that you face.

Please do not hesitate to contact us on 0115 9599550.  You can also use the contact form below.

It may be that one of our other offices is more convenient to you.  If so, you can find contact details for your nearest office here.

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Pre-Charge Bail – Policing & Crime Act 2017

The issue of pre-charge bail periods has been highlighted in the national press in recent years following the arrest of high profile individuals as part of major criminal investigations such as Operation Yewtree.

pre-charge bail Police & Crime Act 2017

Campaign to limit pre-charge bail successful?

The spotlight has been on those individuals placed on Police bail for month after month following arrest whilst investigations were completed into the alleged crimes. The impact of these long delays, which are rarely explained, on the suspect, victims and the administration of Justice cannot be underestimated.  A summary of the campaign to change the procedure can be found here.

As such the Government has attempted to address this in the new Policing and Crime Act 2017. However, while the revised 28 day bail period may be headline grabbing, a closer look shows a complex set of rules which reveal that this limitation is not what it seems.

Police bail in the past

The previous rules for individuals arrested by the police and placed on police bail whilst investigations continue in England and Wales are rather simple and open to abuse or lack of proper consideration. A custody sergeant would base a decision on what they were told by an investigating officer.  He could be easily persuaded that it was necessary and proportionate to impose bail so that the Police could continue to investigate an offence.  Bail could be granted to obtain a decision from the Crown Prosecution Service (CPS) to charge.  The bail could be subsequently extended if more time is was requested and justified.

There were no time limits imposed on this, other than where minor offences needing to be charged within 6 months of the commission of the offence.

Bail without limit of time

As a result suspects who have not been convicted of any crime could remain on bail for months at a time, often with bail conditions that limited their private lives.  They would  not know if they were to face criminal prosecution or not.  Thus people’s lives would be put on hold, simply waiting for a return on bail to the police station to find out their fate.  Often, they were simply re-bailed as the investigation was said not to be complete.  The waiting would begin again.

In some cases there may well be justification for such delays. For example, there may a large number of witnesses to find and speak to during a public disturbance, or expert forensic evidence is needed to be sought and tested, or hours of CCTV footage to be considered.

Often, however, any extension was due to officers not completing necessary enquiries due to the level of their workloads, lack of resources, unhelpful shift patterns, holidays and the transfer of cases between officers.  The impact on a suspect or alleged victim could be immeasurable and so needed addressing.

New pre-charge bail rules from 3 April 2017

Due to this need the Policing and Crime Act 2017 has been passed. This brings in new rules on all new arrests from 3rd April 2017.

pre charge bail policing and crime act 2017The main principal of the new law is that there is a presumption is introduced.  This applies in cases where Police are not in a position to seek a charging decision immediately following a first detention.  In these cases the suspect will be released without bail and contacted in the future if further enquiries deem it necessary.

The legislation acknowledges that a large proportion of cases currently investigated result in a suspect being placed on Police bail whilst further enquiries are made.  Therefore the presumption seems unlikely to apply in many cases and instead the police will continue to place suspects on bail.

28 Day Limit on pre-charge bail

Under the new law the police, where they feel it necessary and proportionate, can impose bail on the suspect to return to the police station in 28 days.  This is substantially shorter than previous pre-charge bail time scales adopted by the police.  It is designed with the hope that the police will continue to investigate the offence.  There will not be the prejudice of substantial delays on the suspect or alleged victim.

Within that 28 day period the police are expected to conclude their enquiries.  They should also obtain a decision as to whether the suspect should be charged. This should be a straightforward obligation on the police that should improve matters for all.

Rules undermining 28 day pre-charge bail limit

The 28 day limit is unfortunately qualified in several ways.  For example, the period is suspended if the case is transferred to the Crown Prosecution Service for a charging decision.  It only restarts when the case is returned from them to the Police.

As a result, if the CPS inform the officer that they will need 3 months to consider the file the suspect will simply have his bail enlarged for that period.  It will not count.  Whilst the Police would still have to consider if it is necessary and proportionate to have the suspect on bail for that period, past experience tells us that they will.  Delays will continue.

Additionally, at the end of any 28 day period the prosecution can advise the officer that further work is required.   The investigating officer can ask a Superintendent to extend the bail period by up to three months.

Time with the CPS doesn’t count

This three months is from the first arrest.  However, it doesn’t include any time that the file has been with the prosecution.  As a result it is likely to be longer.  If at the end of this extended period the investigation is still not concluded the police can apply to a Magistrates’ Court for yet more time.  This process can be repeated. It is unlikely that these applications will be conducted in a transparent manner, and disappointment with bail extension decisions are likely to persist.

Separate rules for designated cases

Applications to extend the length of pre-charge bail times will not be reserved for the most complex and serious cases.  Such cases are deemed Designated Cases for the purposes of the legislation.  These cases are allowed to wait even longer before any extensions to the bail period are sought.

Judicial oversight in bail cases is welcome.  It will ultimately lead to frustration where the threshold for permitting an extension is low.   There is further speculation that police will sidestep the legislation limiting pre-charge bail by treating the suspect as a volunteer.  They are never arrested and not placed on bail, so the limits do not apply.

As a result, the headline grabbing 28 day bail limit will not do what it appears to say on the tin.  Whether it will speed up justice and remove concerns about pre-charge bail times remains to be seen.

Contact a criminal defence lawyer to discuss pre-charge bail concerns

We have always recognised the impact that lengthy periods on police bail can have on our clients.  We would always take the opportunity to make representations as to whether bail should be extended.

Our criminal defence solicitors and accredited representatives have received training in relation to the new provisions.  They know what we need to do to ensure that your interests are protected during the investigation stage.

You can speak to a specialist criminal lawyer at one of our six offices across the East Midlands.  Find your nearest office here.

Alternatively you can contact us using the form below and we will be in touch.

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News

Public Nuisance – or Not?

Nottingham crime solicitor Lauren Fisher recently dealt with an unusual case of before Nottingham Magistrates’ Court.  Her client was charged with an offence of public nuisance.

Allegation of Public Nuisance

Lauren’s client was an elderly gentleman who was said to have been visiting shops with his trousers open, thus exposing himself.  The police and prosecution had apparently been in no hurry to bring the matter to court.  The offence dated back to the summer of 2015, and proceedings were not commenced by summons until the following June.

Our client presented as vulnerable.  He suffered from both mental illness and learning disabilities.  Representations were made on several occasions that it was not in the public interest for the prosecution to continue, but they fell on deaf ears.

This failure to heed these representations was all the more unfortunate when Lauren prepared the case for trial following service of all of the evidence.  Detailed legal research led to a concern that the evidence even taken at its highest could not prove the case.

Lauren’s client was said to have gone into two shops, one after the other. The Crown relied on this to show it was not an “accident”.  He was said to have been told to ‘put it away’ in one shop before going into the second shop still exposed.

Delay Causes Prosecution Problems

It was at this stage, however, that the delay created by the police in investigating the matter created problems for the prosecution.  The witness in the first show was unable to give the date the incident occurred, or even the day of the week.  At most she could say that it had happened in August.

The police had failed to hold any form of identification procedure, so witnesses were not given the opportunity to say whether Lauren’s client was the man seen with his trousers undone.

The lack of evidence to show that our client had been warned of his conduct immediately before a visit to a second shop significantly undermined the a suggestion that his behaviour was deliberate.  The fact that there were only two shop workers in the second shop was arguably insufficient to show a ‘public’ nuisance.

Renewed Representations

Unfortunately the health of Lauren’s client deteriorated over the course of the proceedings.  This led to the need for a psychiatric report to be obtained.  As an alternative to that considerable expense to the public purse, Lauren renewed the representations to the prosecution, combining factors relating to the health of her client with the likelihood of a successful outcome due to lack of evidence.  These representations were supplemented by service of a skeleton argument.

Successful Legal Argument

The matter was listed for a case management hearing and the legal argument was dealt with during that hearing as a preliminary point. The District Judge ruled that the prosecution would be unable to establish that it was Lauren’s client in the first shop on the same day, and that the behaviour gave established, as a matter of law, a public nuisance.

The prosecution offered no evidence and the charge against Lauren’s client was dismissed.

Contact Lauren Fisher

Cases alleging public nuisance may be rare, but Nottingham criminal solicitor advocate Lauren Fisher will show the same level of care whatever the allegation that you face.

If you are due to be interviewed by the police or face court proceedings then please telephone Lauren on 0115 9599550.