Tag Archives: sentence

News

New sentencing guidelines for child cruelty offences

The Sentencing Council has published a new guideline for how those guilty of child cruelty offences should be sentenced.  It covers three offences:

  • cruelty to a child;
  • causing or allowing a child to die or suffer serious physical harm; and
  • failing to protect a girl from the risk of female genital mutilation (FGM).

Sentencing Council member Mrs Justice Maura McGowan said:

“Child cruelty offences vary greatly. They can range from a one-off lapse of care which puts a child at risk of harm to a campaign of deliberate cruelty which leads to serious injury or even death. This new guideline will help ensure sentences that reflect what the offender has done and the harm to the child. It states for example that cases involving very significant force, or multiple incidents of serious cruelty should always be treated as being in the highest category of culpability. The guideline will also assist sentencers in cases where the offender has also been the victim of abuse from another.”

child cruelty offences

When does the guideline come in to force?

The sentencing guideline for child cruelty offences applies to all cases sentenced on or after 1 January 2019.  This means that cases charged before that date may be affected by the changes if there is to be a sentence after that date.

Does it apply to all offences of causing harm to a child?

No, it doesn’t.

When someone is prosecuted for harming a child, the offence charged will vary according to the circumstances.  It is important to distinguish the offences in this guideline from other offences that may be charged, such as assault, murder and manslaughter.

There are also cases in which a child is harmed and one person is charged with assault and another with allowing the child to suffer serious physical harm.

Publication of the guideline marks the first time that there has been sentencing guidance for the offences of causing or allowing a child to die or suffer serious physical harm and failing to protect a girl from the risk of FGM.

The sentencing guideline also provides revised guidance for the offence of cruelty to a child.  This replaces the earlier guidance issued in 2008.

Child cruelty offences are complex and can vary greatly.  As a result the guideline has been designed to assist with an effective assessment of each case that comes before the courts to help ensure consistent and proportionate sentencing.

Some offenders may be incompetent parents, while others may deliberately inflict harm on children in their care. Child cruelty offences could include parents or guardians leaving children home alone, neglecting them or putting them at risk through alcohol or drug abuse or subjecting them to sustained and deliberate ill-treatment and violence that leads to serious injury or death.

Offences can also involve a parent or guardian having failed to act to protect their child from ill-treatment by someone else in the household, which can be due to them being victims of violence and intimidation from the same person themselves.

Is there anything new in the approach to sentencing?

In assessing harm to victims, as well as physical and psychological harm, the guidelines for child cruelty offences take into account for the first time the developmental and/or emotional harm that such offences can cause to a victim. This may for example be manifested in developmental milestones that a child has not met.

child cruelty offences

The guidelines also introduce a new aggravating factor of an offender blaming others for an offence. This is because such cases will frequently involve one parent or carer/guardian seeking to blame the other for what happened in order to avoid prosecution.

Another factor that has been added that indicates high culpability is where the “offender [has] professional responsibility for the victim” to indicate that culpability is higher in those rare cases where, for example a teacher or sports coach abuses one of the children in their care.

The guidelines also contain, for the first time, additional guidance for the court in considering whether to impose custody in cases where the offender has parental responsibility and is sole or primary carer for the victim and other children.

In these cases, the court is reminded to consider the impact which a custodial sentence for the offender would have on the victim and whether this is proportionate to the seriousness of the offence. This will be particularly relevant in lower culpability cases where the offender has otherwise been a loving and capable parent or carer.

Cruelty to a child

The offence of cruelty to a child is broad in its form and severity. Cases may be sentenced in the magistrates’ courts or Crown Court and involve ill-treatment and assault, neglect, abandonment, and failure to protect a child.

In the vast majority of cases the offender is usually the parent or guardian of the victim but it could apply to others entrusted with the care of a child. Many of these offences are at the lower end of severity, including low levels of neglect and cases where there is a risk of harm but no harm actually comes to the child.

The new guideline sets out proportionate sentencing levels to cover the wide range of situations that the courts deal with. One offence could involve someone who is an otherwise good parent putting a child at risk through a one-off lapse of care, while another could involve a parent guilty of a campaign of cruelty involving serious violence and sadistic behaviour that leads to a child suffering serious physical or psychological harm.

Causing or allowing a child to die or suffer serious physical harm

The main purpose of the legislation for this offence is that it can be prosecuted in instances where a child has died or suffered serious physical harm as a result of an unlawful act, such as an assault, by a member of the household but there is not enough evidence to prove which of the defendants committed the act.  They may both blame each other.

In such cases before the introduction of this legislation, neither defendant could be found guilty of murder, manslaughter or assault and so nobody would be held accountable. The guideline reflects the aims of the legislation, including for example the aggravating factor of an offender blaming others for the offence.

This offence can also be used in its own right, for example if someone in the household is charged with the murder or manslaughter of a child, another member may be convicted of causing/allowing death, if it can be proved that they foresaw, or should have foreseen, that their co-defendant would commit an unlawful act which risked serious physical harm to the child.

There are very low volumes of offenders sentenced for this offence, due to the fact that where a child has been killed, those responsible are likely to be charged with murder or manslaughter, and where the child was badly injured, a serious assault charge would normally be brought.

Failing to protect a girl from the risk of Female Genital Mutilation

This offence is committed when a parent or carer of a girl under 16 allows FGM to take place unless they can show that they were not aware of such a risk and reasonably could not have been expected to be, or that they took reasonable steps in order to protect the girl.

The issue of FGM has been of growing concern within Parliament and the public and so the Council is keen to provide a clear approach to ensure consistent and appropriate sentencing when offenders are convicted.

The guideline takes into account the psychological impact these offences can have on victims and acknowledges that by their very nature, all offences of FGM carry an inherent level of harm.

The full sentencing guideline for child cruelty offences can be found here.

How our criminal law solicitors can help defend child cruelty offences

We will be able to give you advice as to the strength of the evidence in child cruelty offences, the availability of defences and likely sentence upon conviction.  You will always be helped by seeking this advice at the earliest possible opportunity.

As a result, 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.

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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Supplying drugs or possessing drugs with intent to supply – the law

supplying drugsAllegations of supplying drugs or possessing them with intent to supply are more serious than simply possessing the drugs.  Such allegations are likely to lead to lengthy custodial sentences.

What drugs are illegal to supply?

It is an offence to supply a controlled drug. This includes the ones that will immediately spring to mind such as heroin, cocaine, cannabis and amphetamine. It also includes what are called Class B and C drugs such as steroids, khat and ketamine. Some of these may be lawful to possess but not supply.

What is meant by supply?

 supplying drugsThe word “supply” is to be given its everyday meaning. Buying drugs on behalf of a group of people and handing them out, even for no profit, is still supply.

Handing drugs to someone else for safe-keeping may not be supply (although even that is not clear cut), but if that person holds the drugs intending to return them to the first person, he may be guilty of possession with intent to supply.

The law relating to possession of drugs is some of the most complicated criminal law on the statute book.

How does the prosecution prove an intent to supply?

The easiest way to prove this is by an admission of intent. Other ways include an assessment of the circumstances in which the drugs are held and the circumstances and behaviour of the alleged offender.

The quantity of drugs, possession of cash, drugs paraphernalia, “tick lists” or debtors’ lists, and phone records and messaging recovered from mobile phones will all be considered.

If there is insufficient evidence of an intent to supply the prosecution may accept a plea to simple possession.

What about proving possession?

To have an intent to supply you also have to be in possession of the drug. A person has in his possession anything which is in his physical custody or under his control.  You need to have knowledge of the drugs, but you do not necessarily have to have them in your pocket or vehicle.

What sentences are given out for supplying drugs?

supplying drugsThe maximum sentence for Class A drugs is life, for Class B and C it is 14 years imprisonment.

If an adult defendant has two or more convictions for a Class A drug trafficking offence, a seven-year minimum sentence applies, unless it is unjust to impose such sentence.

The offence is aggravated for adults if the offence is committed on or in the vicinity of school premises at a relevant time.  A relevant time is when the premises are in use by persons aged under 18 or within one hour of the start or end of such time.

The offence is also aggravated if a courier under the age of 18 is used in the commission of the offence.

The sentencing court will use the specific sentencing guidelines for drug offences. Those involved in the supply of Class A drugs are more likely to receive custodial sentences. The Court will consider factors such as quantities, the role played, whether it is street dealing or a commercial enterprise, financial gain and, as always, credit is given for a guilty plea.

Drugs offences attract some of the lengthiest prison sentences handed out in our courts.

The full sentencing guidelines for drug supply and other offences can be found here.

Instruct criminal solicitors experienced in defending allegations of supplying drugs.

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.

We assess the evidence on your behalf, advise you as to plea and can give you an indication of likely sentence if convicted. There are a number of possible defences available that we will consider.

As a result, if you are arrested or know that the police wish to speak to you about an offence of supplying drugs 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 read more about drug supply cases that we have dealt with:

This case involved a sentencing for supplying drugs into prison.

In this case a guilty plea resulted in a suspended sentence.

Here we successfully argued for a discharge for allowing premises to be used for cultivation of cannabis.

In this case one of our Higher Courts Advocates successfully challenged prosecution expert evidence at trial.

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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Sentence of vulnerable clients at Saturday morning court

Local newspapers will often publicise cases that have been before local Magistrates’ Courts.  It will often seem that the sentences handed out in some cases are entirely disproportionate to the offences that vulnerable defendants have been convicted of.  This may be due to circumstances that we are unaware of, or because of a particularly harsh sentencing bench, or because the defendants appeared unrepresented before the court.

Such severe sentences are not inevitable.  At a recent Saturday morning court, Nottingham partner and crime solicitor Nick Walsh was able to secure constructive disposals for two of his vulnerable clients.

Serial shop lifter receives conditional discharge

Nick’s first client was charged with  five shop thefts with a total value of £760.  The evidence was strong and he had made admissions with the benefit of our free and independent legal advice in police interview.

He had a long history of offending and had been to prison four times in the last two years.  He had only been released from custody shortly before the new offending.

Nottingham Magistrates’ Court

Due to his vulnerabilities he was very volatile when Nick spoke to him.  He was a long standing client of Nottingham crime solicitor Graham Heathcote and initially only wanted Graham to represent him.  At one stage he intended to go into court unrepresented if Graham could not deal with his case.

Nick’s manner is such that he was able to calm him down and take instructions about the miserable circumstances that he had endured since release from prison.  He had remained homeless, and as a result of sleeping rough had suffered abuse and assaults.

Despite the number of offences and his record of convictions Nick was able to persuade the Magistrates to deal with him by way of a conditional discharge.

Vulnerable drug user sentenced to community order

vulnerable clientsThe second of Nick’s vulnerable clients on that morning was a female charged with several thefts, possession of heroin and breach of her post release supervision.

She had received two custodial sentences for thefts within the nine months prior to this offending.  Before that she had the benefit of other community orders that involved Drug Rehabilitation Requirements.  All of these interventions had failed.

Our client had been kept for court as the police refused bail, believing that she would fail to attend court or commit further offences if bailed.

Fortunately Nick was able to speak with the duty probation officer.  As a result of that discussion, Nick was able to mitigate and persuade the Magistrates that his client ought to be given a further opportunity to comply with a community order.  A further Drug Rehabilitation Requirement was imposed without the need for a pre-sentence report from the probation service.

Choose the right solicitor for your case

As we have a contract with the government to permit us to provide expert legal advice and representation under the legal aid scheme.  This means that our advice in the police station will always be free of charge to you in the police station.

There are many advantages to seeking advice in the police station and you can read about those here.

Many of our vulnerable clients will be also be entitled to legal aid in the Magistrates’ Court.   Nearly all will be eligible for legal aid to ensure representation for cases before the Crown Court.

You can read more about these types of legal aid here.

In the cases at the police station or the courts set out above, all of our clients had the benefit of free legal advice.

Our solicitors regularly deal with the most vulnerable clients within our community.

An example from our Chesterfield office can be found here.

You can read a second case study, this time from our Nottingham office here.

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You can find details of your nearest office here.

Alternatively you can use the contact form below.

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What is a racially aggravated offence?

In recent years legislation has been enacted to ensure that crimes demonstrating a hostility towards certain groups of people are treated more seriously than before.  If an offence is said to be racially aggravated, then you should expect a more significant sentence if convicted.

What does it mean for an offence to be racially aggravated?

An offence is racially aggravated if, at the time of the offence, you demonstrate toward the victim hostility based on his membership of a racial group or the offence is motivated by that hostility.

So, shouting racist abuse or making racist comments will make an offence racially aggravated.  An offence will also be deemed racially aggravated where no comments are made but the offence is committed against someone because of their race.

Offences as a result of hostility toward a religious group, rather than due to race, are treated in the same way.

The fact that the victim may be indifferent to any abuse is irrelevant to whether the offence is racially aggravated.

It is also irrelevant if the reason for the offence was unrelated to race. For example, abusing a doorman because he wouldn’t let your friend into a club in combination with racist language will be sufficient.

How does it affect sentencing?

Each offence in law has a maximum sentence attached to it.  For offences that are racially aggravated that maximum sentence is increased. For example, common assault carries six months imprisonment but the racially aggravated offence increases the maximum sentence to 2 years.  For assault occasioning actual bodily harm the maximum sentence increases from 5 to 7 years.

The starting point is to consider the sentence that would have been imposed for the offence if it was not racially aggravated after consideration of all the other aggravating or mitigating factors in the case.

The sentence will then be increased to take account of the racial aggravation.

The extent of the increase in sentence will depend on the level of aggravation. The court will consider whether the offence was:

  • planned
  • part of a pattern of offending
  • deliberately set up to be humiliating to the victim
  • committed in the victim’s home
  • repeated or prolonged

Account will also be taken of any distress caused to other persons or the wider community and whether the offender was a member of a group that promotes hostility.

Does it have to be charged as being racially aggravated?

 Even if the offence isn’t specifically charged as being racially aggravated the circumstances can be treated as an aggravating feature in sentencing (O’Leary [2015] EWCA Crim 1306).

How can a criminal law specialist help?

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.

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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New report criticises defendants in Magistrates’ Court domestic violence cases

Dame Vera Baird QC, the Police and Crime Commissioner for Northumberland, has once more sought to bring issues of the prosecution of cases of domestic violence to the fore.

She has commissioned and published a report in which she denounces defendants who plead not guilty in cases alleging charges of domestic violence as ‘gaming the system’ in order to have cases dropped.

Magistrates refusal to grant CPS adjournment

The report maintains that defendants are using the period between plea and trial to intimidate partners into failing to attend court.  Once a witness doesn’t attend, it is claimed that the courts are all too quick to refuse adjournment requests, leaving the prosecution with no alternative but to offer no evidence, resulting in a not guilty verdict.

In 13 cases out 32 observed at one court centre, Magistrates refused an adjournment when the complainant failed to attend.  As a result, the cases were dismissed despite arguments to the contrary from the CPS.

Late change of plea

In 21 cases at one court centre, defendants entered a not-guilty plea and asked for a trial. On the various dates fixed, the observers noticed, 12 of them pleaded guilty as soon as the victim turned up and before they had given any evidence.

Criticism of defence practitioners

Defence solicitors also attract criticism.  Following a guilty plea or verdict, it is believed that they offer ‘irrelevant’ mitigation based on their client’s drunken state.

Of course, these complaints fail to acknowledge two important matters:

  • being drunk is an aggravating feature in sentencing guidelines rather than mitigation
  • whether a defendant was drunk may, however, allow the court to treat an isolated incident as being our of character

domestic violence

What is the real complaint?

In reality, the complaints within the report seem to relate to the following:

  • the failure to give proper training to Magistrates
  • a failure to properly fund support staff
  • under use by police and CPS of the charge of coercive or controlling behaviour
  • insufficient support of the complainant to ensure they attend to give evidence
  • failure by police or CPS to present full information in support of applications for restraining orders
  • evidential failings that impacted on the court process
  • courts not ordering Newton Hearing to decide a factual basis for sentence where certain parts of an incident are denied

All of these are capable of change subject to the necessary resources being provided.  The defence cannot be said to be responsible for any of them.  At first glance the analysis of the limited number of cases in the study does not acknowledge the legal considerations and framework that would apply in many of the cases.

Conclusions

The report is based on a limited number of cases in a single geographical region so the conclusions that could or should be drawn are perhaps limited.

While defendants can be confident that they may gain an advantage in pleading not guilty and having the matter listed for trial they will continue to do so.  Further, it is their right to test the evidence at trial.

domestic violenceThe labelling of the entering of a not guilty plea as ‘gaming the system’ is unhelpful.  Some defendants will do so hoping to gain the advantage of a witness not attending, others (perhaps the majority) will plead not guilty because they have a defence to the charges brought.

We regularly provide advice and representation at contested domestic violence trials.  An example of such a trial can be found here.

Those defendants who in the end plead guilty will lose credit for a plea that could have been entered earlier and will find it extremely hard to argue that any genuine regret or remorse exists.  Sentencing for domestic violence allegations are governed by a specific guideline.

The police and the prosecution have the evidential tools at their disposal to build many cases without the need for a complainant to attend.  Some considerations relating to such cases can be found here.

The full report can be found here.

Instruct an expert in defending domestic violence alleagations

domestic violenceAllegations of domestic violence are treated seriously by the courts.  They also need handling with sensitivity.  The law can be complex, particularly where the prosecution do not seek to rely on the complainant’s evidence.

As a result, if you are arrested or know that the police wish to speak to you about an offence of domestic violence 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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Criminal damage – evidence, police interview and court proceedings

The crime of criminal damage is made out if a person intentionally or recklessly damages property. Most commonly it is damage to cars and windows, very often as an act of revenge.

The damage does not need to be permanent. There have been cases where graffiti, the use of water-soluble paints on a pavement and squashing a policeman’s helmet have all been held to be criminal damage, as has flooding a police cell.

If action, expense or inconvenience is involved in putting the matter right then damage will have been caused, as would be the case if you created ‘crop circles’ in a wheat field.

The court will consider all of the circumstances.  Whether something is damaged is a matter of fact or degree that may have to be decided by the court if the case goes to trial.

criminal damage

What if it is my property?

 You cannot unlawfully damage your own property, but it can still be an offence to damage jointly owned property. So, a person who smashes up a family home in a fit of rage would very often be guilty of the offence of criminal damage.

What if it was an accident?

There is sometimes a fine line between accident and recklessness. To prove recklessness, the court should be sure that you were aware of a risk that property would be damaged, and, in the circumstances, it was unreasonable for you to take that risk.

The offence can be committed by being reckless or intending to cause the damage. Intent is simply that you committed the damage on purpose (although in legal terms it is slightly more complex than this).

Is there a defence to criminal damage?

 Whether the offence is committed depends on damage being caused without “lawful excuse”. You would have lawful excuse if you believed you had consent to cause the damage or would have had consent or that you were protecting your own property or that belonging to someone else. Your actions would have to be reasonable in all the circumstances. It is your belief that is important so if it is honestly held it may not matter if the belief is not justified.

Causing damage simply because you are drunk will afford neither a defence nor mitigation.

 Where will I be dealt with?

 criminal damageThis offence will be dealt with in the magistrates’ court where the value involved does not exceed £5,000. When there is more than one offence of damage the total of the damages will be used to calculate whether the offence is £5,000 or less. The court determines the value of the damage in deciding whether they are to deal with the case.

Where damage is caused by fire (arson) different considerations apply.

Is there a time limit on prosecution?

 Even though certain offences can only be dealt with in the magistrates’ court the six-month time period for prosecution does not apply.

What sentence will I get?

 criminal damageMinor damage such as breaking a small window is likely to result in a conditional discharge or fine. Significant damage up to £5,000 caused as part of a spree can lead to a community order or custody of up to three months. The higher the value, the more likely imprisonment will be imposed, the maximum sentence at the crown court is ten years.

In appropriate cases we will work hard to have your case diverted away from the criminal justice system.  An early apology and offer of compensation can sometimes be enough to avoid a criminal case.

How can we help?

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

In a case of criminal damage this might include diverting your case from the court process entirely.

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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Offences taken into consideration (‘TICs’)

What are offences taken into consideration or ‘TICs’?

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

When will a person be asked about them?

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

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

What happens if I want to admit TICs?

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

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

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

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

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

The negative consequences of TICs

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

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

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

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

Wiping the slate clean

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

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

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

What sort of offences can be TIC’d?

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

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

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

 Not necessarily.

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

How can we help in these circumstances?

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

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

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

 

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Company directors disqualification – the hidden penalty on sentence

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

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

What do business people need to consider?

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

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

directors disqualification

What conduct is relevant?

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

The court has extensive discretion in relation to most offences:

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

What is a ‘disqualification order’?

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

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

How long does the order last?

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

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

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

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

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

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

What happens if I breach the order?

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

How we can assist in a directors disqualification case

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

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Alternatively you can use the contact form below.

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News

Changes in sentencing guidelines for knife crime

Knife crime is very much on the political agenda, with a number of stabbings having taken place over the last few weeks.  These incidents resulted in death or serious injury.  In due course there will be a significant prison sentence for those found responsible.

Attention is now focused on using deterrent sentences to discourage knife possession.

Knew sentencing guideline for knife crime

The Sentencing Council, which is responsible for setting sentencing guidelines in England and Wales, has today issued a new guideline for knife crime offences.

The guideline will apply to all of those sentenced on or after 1 June 2018, regardless of the date of the offence.

knife crime sentencing guidelines

What offences does it cover?

The guideline applies to offences of:

  • Possession of an offensive weapon in a public place
  • Possession of an article with a blade/ point in a public place
  • Possession of an offensive weapon on school premises
  • Possession of an article with a blade/ point on school premises
  • Unauthorised possession in prison of a knife or offensive weapon
  • Threatening with an offensive weapon in a public place
  • Threatening with an article with a blade/ point in a public place
  • Threatening with an article with a blade/ point on school premises
  • Threatening with an offensive weapon on school premises

The guideline does not cover situations where a knife or other weapon is actually used to harm someone. This would come under other offences such as those relating to wounding, wounding with intent, manslaughter or murder.

Similarly, it does not include the use or possession of firearms which is covered by different legislation.

Does the guideline apply to all offenders?

The new guideline applies both to adults and those under 18. In relation to the latter, the guideline will work alongside the Sentencing Children and Young People guideline and encourage courts to look in far greater detail at the age and maturity, background and circumstances of each offender in order to reach the most appropriate sentence.  The primary aim in such cases will be to prevent re-offending.  This is the main function of the youth justice system.

What will be the effect of the new knife crime guidance?

Leading Court of Appeal judgements have emphasised the seriousness of this type of offending.  The court has set out sentence knife crime sentencing guidelinelevels that senior judges see as appropriate for dealing with offenders.

The proposed guideline takes these changes to the law and court judgments into account.  It then provides consolidated and up to date guidance. It ensures that those offenders convicted of offences involving knives or particularly dangerous weapons, as well as those who repeatedly offend, will receive the highest sentences.

The introduction of the guideline may, therefore, lead to some increases in sentence levels.  This will predominantly be in relation to adults convicted of possession offences.

Are there any minimum sentences for these offences?

The law on mandatory sentences for offences involving bladed articles or offensive weapons states:

Where an offender is convicted of a second (or further) bladed article/ offensive weapon offence the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.

Where an offender is convicted of threatening with a bladed article/ offensive weapon the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.

knife crime sentencing guidelineAs the guideline gives the highest sentences to those offenders who threaten with knives or highly dangerous weapons, these offenders will always receive sentences greater than six months. The combination of the legislation and the guideline may therefore mean that there is an increase in sentences received by some offenders convicted of these offences.

Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider it unjust to impose the statutory minimum sentence.

The court should consider the following factors to determine whether it would be unjust to impose the statutory minimum sentence:

  • Strong personal mitigation
  • Whether there is a strong prospect of rehabilitation
  • Whether custody will result in significant impact on others

What about ‘highly dangerous weapons’?

knife crime acid attacks sentenceAdditional guidance has been included as to what constitutes a highly dangerous weapon.

A straightforward offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury or is intended by the person having it with him for such use.

A highly dangerous weapon must, therefore, be an offensive weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond the usual definition.

The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.

Instruct an expert in defending those accused of knife crime

It may be that you intend to deny an allegation that you are unlawfully in possession of a knife or other weapon.  If so, the guideline might mean that more cases are sent for trial at the Crown Court.  Our expert team will ensure that your best case is put forward.

Alternatively you might be pleading guilty.  Sentencing is a complex process.  All of our advocates understand how to navigate sentencing guidelines and ensure that they are not applied in a mechanistic manner.  Instead we seek to ensure that the court focuses on all the considerations relevant to you as an individual.

You can find your nearest office here.

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VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below.

News

New Domestic Abuse Sentencing Guideline Published

A new domestic abuse sentencing guideline was published on 22 February 2018, giving courts up to date guidance that emphasises the seriousness of offending involving domestic violence or other forms of abuse in a domestic setting.

domestic abuse sentencing guideline

What is domestic abuse?

There is no specific crime of domestic abuse.   It can be a feature of many offences including assault, sexual offences or harassment. The new domestic abuse sentencing guideline aims to ensure that the seriousness of these offences is properly taken into account when such offences are being sentenced.  The intention is that sufficient thought is also given to the need to address the offender’s behaviour and prevent re-offending.

Are there an existing domestic abuse sentencing guideline?

The new guideline replaces a domestic violence guideline which was published in 2006. A great deal has changed since then in terms of societal attitudes, expert thinking and terminology.

It was felt, therefore, that guidance for courts was therefore in need of revision to bring it up to date. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’.  This reflects that offences can involve psychological, sexual, financial or emotional abuse as well as physical violence.

When is the new guideline in force?

The domestic abuse sentencing guideline will apply to all offenders aged 16 and older sentenced on or after 24 May 2018.

How does this guideline change things?

The guideline identifies the principles relevant to the sentencing of cases involving domestic abuse, outlines how the seriousness of domestic abuse sentencing guidelineoffences should be assessed and highlights other factors that should be taken into account.

It brings a distinct change in emphasis in relation to seriousness.

The previous sentencing guideline stated that offences committed in a domestic context should be seen as no less serious than those in a non-domestic context, whereas the new guideline emphasises that the fact an offence took place in a domestic context makes it more serious.

This is because domestic abuse is rarely a one-off incident, it is likely to become increasingly frequent and more serious the longer it continues and may result in death. It can also lead to lasting trauma for victims and their children.

For the first time, the guideline also includes a reference to abuse which is perpetrated through use of technology, such as email or text, social networking sites or tracking devices fitted to a victim’s car.  These are increasingly common methods by which domestic abuse can occur.

The guidelines recognise that these offences can affect people of all backgrounds and the guideline is also clear that abuse can occur between family members as well as between intimate partners.

Will anything else change?

Yes. In particular, there is now additional guidance on restraining orders, along with new guidance on Victim Personal Statements.

In relation to restraining orders, the guideline now includes additional guidance to assist the court with a renewed focus on keeping the victim safe, particularly for those who continue or resume their relationship with the offender.

The guideline further reminds courts to take any Victim Personal Statement into account.  Where there is no such statement, this is not an indication of any lack of harm to the victim.

Sentencing Council member Jill Gramann said:

“Domestic abuse comes in many forms such as harassment, assault and sex offences. The increasing use of technology in offending has meant that it has also evolved in its scope and impact. The new guideline will ensure that courts have the information they need to deal with the great range of offending and help prevent further abuse occurring.”

What factors will a court take into account on sentence?

The following list of non-exhaustive aggravating and mitigating factors are of particular relevance to offences committed in a domestic context and should be considered alongside offence specific factors.

 Aggravating Factors
  • Abuse of trust and abuse of power
  • Victim is particularly vulnerable.   Although all victims of domestic abuse are potentially vulnerable due to the nature of the abuse, but some victims of domestic abuse may be more vulnerable than others, and not all vulnerabilities are immediately apparent)
  • Steps taken to prevent the victim reporting an incident
  • Steps taken to prevent the victim obtaining assistance
  • Victim forced to leave home, or steps have to be taken to exclude the offender from the home to ensure the victim’s safety
  • Impact on children  as children can be adversely impacted by both direct and indirect exposure to domestic abuse
  • Using contact arrangements with a child to instigate an offence
  • A proven history of violence or threats by the offender in a domestic context
  • A history of disobedience to court orders such as, but not limited to, Domestic Violence Protection Orders, non-molestation orders and restraining orders
Mitigating Factors
  • Positive good character – as a general principle of sentencing, a court will take account of an offender’s positive good character. However, it is recognised that one of the factors that can allow domestic abuse to continue unnoticed for lengthy periods is the ability of the perpetrator to have a public and a private face. In respect of offences committed within a domestic context, an offender’s good character in relation to conduct outside these offences should generally be of no relevance where there is a proven pattern of behaviour
  • Evidence of genuine recognition of the need for change, and evidence of obtaining help or treatment to effect that change

Will those convicted get a longer sentence?

A spokesperson for the Sentencing Council commented:

‘Overall, it is likely that there will be an increase in sentence severity as a result of the introduction of the guideline, however, the guideline emphasises the need to consider the most appropriate sentence to prevent further re-offending and protect victims, which may be a community order.’

How we can help

domestic abuse sentencing guidelineMany people feel that sentencing is increasingly a mechanistic process, with a danger that the new domestic abuse sentencing guideline will be rigidly stuck to, and the individual considerations of defendants either ignored or played down.

However, case law over the last few years emphasises that courts should be cautious to ensure that this does not happen. All of our advocates are experienced in presenting the best mitigation possible to courts, ensuring the best possible outcome.

We can advise, for example, on the best way to present your regret and remorse following a guilty plea. 

A specific case study can be found here.

If you intend to fight your case at trial then we have a proven track record of securing not guilty verdicts.  Examples can be found here and here.

We can advise on how to tackle difficult issues relating to whether  hearsay evidence should be admitted in your case.

Contact a specialist in defending domestic abuse cases

The new domestic abuse sentencing guideline mean that it may be easier in the future for courts to justify a custodial sentence.  As a result, you will want to contact us as soon as the police make contact with you.

Your nearest office can be found here.  We provide a nationwide service, 24 hours a day, 7 days a week. All advice and assistance in police interview will be free of charge to you.  Legal aid is available for many cases before the Magistrates’ and Crown Courts.

VHS Fletchers offices across the East Midlands