Tag Archives: prosecution

News

Failing to Provide Case Dropped

Nottingham crime solicitor Nick Walsh was recently instructed by a client facing an allegation of failing to provide a specimen of breath for analysis and police assault.  Ultimately Nick persuaded the prosecution not to proceed with the charges.

Medical Defence to Failing to Provide

Nick’s client had a history of mental illness.   The account given by the arresting officers showed that his behaviour was bizarre in the extreme.  From the outset, Nick correctly identified that the relevant issue would be whether, bearing in mind the nature of his illness, he was capable of understanding the request made of him and the likely consequences of a refusal.

A psychiatric report was obtained that expressed the view that our client was very ill during his time in police custody.  The  paramedic who examined him at the police station said that his behaviour was a result of mental illness and not the effect of drink or drugs.

Prosecution Determined to Proceed

Despite this information the prosecution were determined to proceed with the prosecution.  Requests to the prosecution eventually produced the full intoxilyser procedure forms.  From those, it became apparent that the officer conducting the procedure had accepted that Nick’s client had a medical reason for his failing to provide a specimen of breath.  It was he who had gone on to arrange for our client to be medically assessed as to whether he was unfit.

It was this decision that had led to the assessment that concluded he was not affected by alcohol, rather illness.

In the Public Interest?

Nick persisted with his representations that it was not in the public interest to persist with the prosecution.  In any event the prosecution would not be in a position to prove the case.  Eventually, having had the case listed for a case management hearing, the prosecution were persuaded to withdraw the charges.  The prosecution was at an end.

Contact Nick Walsh

If you face an allegation at the police station or Magistrates’ Court then please do not hesitate to contact Nick Walsh on 0115 9599550 or email him here.  You will no doubt benefit from his careful analysis of the issues in your case and his persistence in dealing with the prosecution.

News

Confiscation Proceedings (POCA)

The Proceeds of Crime Act 2003 (POCA) was introduced to ensure that convicted criminals were unable to have the benefit of their criminal activity after the conclusion of their cases through confiscation proceedings.

At the conclusion of certain types of proceedings, particularly drug trafficking offences and significant dishonesty offences, the prosecution are able to seek to recover what it alleges is the benefit from the criminal conduct.

Dependant upon the offence, the Crown are able to seek an explanation from the convicted person for all income, expenditure and assets acquired during a 6 year period prior to the commission of the offence.  Absent a reasonable explanation the court is able to treat such items as the fruits of criminal conduct.  The situation can be made even more complicated where the Crown allege that a person has hidden assets or has made inappropriate gifts to others.

Once a figure for this ‘benefit’ has been decided upon the court will then decide whether a person has sufficient assets to use to discharge this benefit figure.  This can involve the sale of property, cars or other assets by a person who may be serving a lengthy prison sentence.

A period of imprisonment is fixed if the money is not paid.  If the assets are not realised and the debt paid within 3 months then there is a risk that the period in default will be activated and the debt remain thereafter.

Understandably these are significant worries for our clients who face confiscation proceedings under POCA.  We take great care in assisting our clients to make sure they comply with all of their obligations under this extremely complicated and potentially draconian legislation  in an attempt to limit their liability and give them an opportunity to discharge any debt and rebuild their circumstances post-conviction.

Serena Simpson, from our Chesterfield office, has recently assisted as litigator in the case of a first time offender who pleaded guilty to supplying drugs.  The supply was only to a close circle of friends in order to subsidise his own drug use.

The Prosecution decided to proceed under the  Proceeds of Crime Act despite the fact he lived a lifestyle far removed from any drug dealing stereotype.

Serena set out with the client to undertake the potentially mammoth task of demonstrating how 6 years of income, assets and expenditure had been legally funded.

The client was helped to:

  • Demonstrate  lawful income he received as an employee
  • Confirming what bank accounts he had and explain the payments in and out
  • Catalogue assets that would be relevant to the proceedings

Serena drafted a Statement of Assets and Means  which was served on the Crown Prosecution Service.  The through preparation on behalf of the client led the Crown to decide that it was not worth pursuing the client under confiscation and the proceedings were discontinued.

Not only did the client have nothing to pay under confiscation proceedings, he also had the benefit of legal aid which means that our advice and representation was free of charge to him.

If you need advice in relation to confiscation of other proceedings please contact your nearest office or email us.