Tag Archives: solicitor

News

Fitness to Practice Committee – Legal Representation

Regulatory and crime solicitor Martin Hadley recently represented a  pharmacist before the Fitness to Practice Committee.  His client faced allegations of dishonesty as well as  breaches of the Responsible Pharmacist & Controlled Drug Regulations.

A lack of early expert advice

In this case the Local Health Board acted upon issues raised by a “whistleblower”. Once the issues had been raised by the Board, our client’s then employer pursued a further investigation.

What was clearly a lengthy and often fraught disciplinary investigation then followed.  Unfortunately, rather than seek specialist legal advice, our client relied on guidance from informal advisers.  This remained the position throughout this stage of the process.

fitness to practice pharmacist legal advice solicitor

As a result our client had no idea that the evidence from this disciplinary investigation could and would be used in proceedings before the General Pharmaceutical Council and the fitness to practice committee.

Late instructions

Our client came to us very late in the process.  The case had already been heard by the Investigating Committee of the General Pharmaceutical.  A decision had already been made that there was evidence against the pharmacist upon which a decision could be made that fitness to practice as a pharmacist was impaired.

By the time Martin received instructions the evidence in the case was substantial.  The bundle of paperwork provided by the General Pharmaceutical Council was significant.  The page count was well over 500, comprising statements and exhibits.

Martin took our client’s full instructions.  This allowed us to make representations to the Council’s solicitors regarding the strength of their evidence on the dishonesty matters.  They agreed with Martin and the allegations were amended to remove certain aspects of the  dishonesty .

As part of our preparation Martin produced a bundle of documents to go before the fitness to practice committee for consideration.  This not only included documents in support of his client’s case but also admissions to be made by both parties as part of the hearing.

The fitness to practice hearing

At the hearing the General Pharmaceutical Council solicitors called two witnesses in support of their case.  Martin cross-examined them.  The questioning led the members of the Committee to agreeing that there was no case to answer in respect of one of the dishonesty allegations.

Once Martin’s client had given evidence the Committee announced that the Council had failed to prove the remaining matter of dishonesty.

A decision still had to be made as to whether Martin’s client was impaired in relation to practicing.  Martin made detailed representations based following his client’s evidence.  Taking these into account the Fitness to Practice Committee decided that our client was not currently impaired and was free to continue to practice

Contact Crime and Regulatory Solicitor Martin Hadley

pharmacist fitness to practice legal advice
Crime and regulatory solicitor Martin Hadley

Earlier advice and representation by an expert regulatory solicitor may well have made the entire process less fraught for our client.  We will always have an eye on the likely effect of an earlier investigation on later disciplinary procedures.

As a result, if you are notified that there is to be an investigation into any aspect of your practice please contact Martin immediately.  He can be reached by phone on 0115 9599550 or by email here.  Martin will be able to advise you wherever you are based in the country.  This will ensure that you make the correct decisions early on in your case.

News

Removal from the Sex Offender Register

Notification Requirements and the Sex Offender Register

How to Be Removed From The List

What is the ‘Sex Offender Register’?

Despite its name, there isn’t an actual sex offender register.  The phrase refers to the notification requirements imposed upon those offenders convicted of sexual offences. Over 50,000 individuals are currently subject to these notification requirements.

The duration of the notification obligation depends on the sentence received by an individual and the age of the offender. Below is a list of the relevant periods for adult offenders:

sex offender register notification requirements

What are the notification requirements?

The notification requirements imposed are complex.  They mainly involve keeping the police informed of your residence and any travel plans.  The police also require notification of changes to your personal details such as a change of name.  They will want to know whether a person is residing in a household with a child.  Bank and credit card details as well as passport/identity documents will need to be disclosed.

It may be that following sentence you do not understand your full obligations under the notification requirements.  If so, please contact us immediately so that we can give you specific advice.

What happens if I do not abide by the notification requirements?

It is important that you fully understand your obligations.  Non-compliance is likely to be a criminal offence.  You can be punished by up to 5 years imprisonment. Any breach is always treated seriously by a court.

Indefinite notification on the sex offender register

It can be seen from the table above that some offenders are subject to the notification regime for an indefinite period. When the regime was first introduced that meant that a person would be subject to the requirement for life.  A court judgment in 2012 changed that.

This change in the law now means that some offenders can apply to have indefinite notification requirements removed.

The law only changed, whoever, in relation to those with an indefinite period of registration.  If you are subject to notification requirements for a fixed term you are unable to apply to have them reduced or removed.

When can I make that application?

The timing of any application will depend upon your age at the time of the offence:

  • an adult can apply after 15 years
  • a juvenile can apply after years.

If you are also subject to a Sexual Offences Prevention Order that must be removed before an application can be made in respect to notification requirements.  Again, we will be able to advise and assist you in relation to this part of the procedure.

How do I go about doing that?

There is a 2-stage process.

Firstly you must make your application to the police. If that application is refused then the decision can be subject to appeal before the Magistrates’ Court.

Do the police always refuse these requests?

Although your initial feeling might be that they do,  in our experience this is not the case. Some police forces have reported an initial success rate in some two thirds of applications to be removed from the sex offender register.

It is not, however, a straightforward matter.  A simple letter to the police asking for the requirements to be lifted is unlikely to succeed. In considering your application, the police have to apply a statutory test.  As a result it is vital that your application is drafted professionally to give you the best chance of success.

When they determine an application, the police must—

(1) have regard to information (if any) received from a responsible body;

(2) consider the risk of sexual harm posed by the offender and the effect of a continuation of the indefinite notification requirements on the offender; and

(3) take into account the matters listed below:

(a) the seriousness of the initial offence;

(b) the period of time which has elapsed since the offender committed the offence (or other offences);

(c) where the offender falls within section 81(1) of the 2003 Act, whether the offender committed any offence under section 3 of the Sex Offenders Act 1997;

(d) whether the offender has committed any offence under section 91 of the Act;

(e) the age of the offender at the qualifying date or further qualifying date;

(f) the age of the offender at the time the offence was committed;

(g) the age of any person who was a victim of any such offence (where applicable) and the difference in age between the victim and the offender at the time the offence was committed;

(h) any assessment of the risk posed by the offender which has been made by a responsible body under the arrangements for managing and assessing risk established under section 325 of the Criminal Justice Act 2003;

(i) any submission or evidence from a victim of the offence giving rise to the indefinite notification requirements;

(j) any convictions or findings made by a court (including by a court in Scotland, Northern Ireland or countries outside the United Kingdom) in respect of the offender for any offence listed in Schedule 3 other than the one referred to in paragraph (a);

(k) any caution which the offender has received for an offence (including for an offence in Northern Ireland or countries outside the United Kingdom) which is listed in Schedule 3;

(l) any convictions or findings made by a court in Scotland, Northern Ireland or countries outside the United Kingdom in respect of the offender for any offence listed in Schedule 5 where the behaviour of the offender since the date of such conviction or finding indicates a risk of sexual harm;

(m) any other submission or evidence of the risk of sexual harm posed by the offender;

(n) any evidence presented by or on behalf of the offender which demonstrates that the offender does not pose a risk of sexual harm;

and

(o) any other matter which the relevant chief officer of police considers to be appropriate.

How can we assist in your application?

You will appreciate from the list of considerations that the appeal process is complex and will require a detailed application from you.

We can assist you in collating the material necessary to draft and submit an application.  This will ensure that any application you make has the best chance of success.  This will be true whether it is considered by the police or before a court.

Contact a specialist criminal solicitor

We have a number of solicitors who will be able to assist you with any query or application relating to the sex offender register.  Please find information about your nearest office here.  Our team provide nationwide advice and representation, so if it is difficult for you to make an appointment then please contact is using the form below and we can contact you to discuss how best to progress your case.

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News

Training on the role of the criminal defence solicitor in Derby

On Friday 6 October Derby criminal law solicitor Nick Wright gave a presentation to the Magistrates’ Association at Derby Magistrates’ Court.

Derby magistrates' court training
Derby crime solicitors Andy Cash (l) and Nick Wright (r)

This was at the invitation of Barbara Richardson, Chair of the Bench, and Chris Walker who is in charge of training.  Nick was joined by fellow local solicitor Andy Cash.  Andy gave his presentation about client issues relating to legal aid and other funding.

Nick relied upon his years of experience to give an insight into the role of the defence solicitor at the police station and at court.  He also helped the Magistrates understand the work that goes into the preparation of a case before it is presented in court.  He also brought Magistrates up to date with the current situation in relation to he potential for further criminal legal aid cuts.

The event was well attended by fifty or so local Justices of the Peace from East Midlands courts.  Feedback suggested that the presentation was much appreciated.  Over the two and a half hours Nick and Andy were able to answer many questions and hopefully provide a better understanding of defence work.

We are pleased to be able to continue a long tradition of providing such training to the Magistrates when asked.  Nottingham partners Nick Walsh and Andrew Wesley have both helped with similar events in Nottingham over the years.

Contact a criminal law specialist

It may make sense for you to instruct a criminal solicitor who trains the very Magistrates who will be making a decision about your case.  If you have court proceedings before Derby Magistrates’ Court then please do not hesitate to call Nick on 01332 546818 or use the contact form below.

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News

Our Crown Court representation secures not guilty verdict

Senior Crown Court litigator Caine Ward and in-house counsel Steve Gosnell provided crown court representation to a client charged with a serious sexual offence.

The offending was said to have occurred over a period of two days and the alleged victim was known to  Caine’s client.  Originally there were two allegations made by the same complainant.  He was in his forties and of previous good character.

Free and independent police station advice

Caine’s client took the opportunity to have free and independent legal advice in the police station.  He answered all questions put to him.  He maintained that they were in a relationship and any contact was consensual.

Further, he went on the state that there would be material on both his and her phone that would support his account.  In particular, there would be messaging between her and her friends that would corroborate what he said.

Our client was released on police bail.  He was told that this was to permit the interrogation of the mobile phones in the case.  He remained on police bail for seven months.

Following investigation, the police and prosecution made a bizarre decision not to charge the most serious offence, but simply proceed with one of the allegations.  Bearing in mind both allegations hinged on the credibility of the same complainant this was hard to understand.

Prosecution pressured to review the case

When the case was first before the court statements were served.  It became clear why the prosecution were not proceeding with one of the charges as the complainant had changed her account in a significant way.  It remained hard to see why the prosecution were continuing with the second allegation in the circumstances.

Of greater concern was that requests for the phone evidence that the police had had seven months to secure went unheeded.  Caine drafted a defence statement.  This demonstrated the importance of the phone evidence.  He repeated the request when the defence statement was served.

Again, the prosecution delayed in providing the information.  Eventually, it was confirmed that the complainant had refused to hand over her mobile phone to the police so downloads could not be obtained.

The matter was listed for two pre-trial reviews so that pressure could be placed on the prosecution to review the case.  On both occasions, different Judges raised concerns about the wisdom of proceeding with the case.  In having the case listed we were able to keep up pressure on the prosecution to drop the prosecution.

Missing phone evidence

The prosecution finally confirmed that not only had the complainant’s phone not been handed to the police but that she had disposed of it and now had a new one.  As a result, all of the evidence had been lost.  The complainant maintained that she had never been asked for her phone.  This was at odds with unused material that Caine had seen.

In the end the prosecution were compelled to review the case one further time and decided to offer no evidence in the week before the trial.  A not guilty verdict was entered. This was clearly the right decision and removed any risk that our client would be convicted before a jury.

All of this was achieved with our client having the benefit of Crown Court criminal legal aid.

Instruct experts in Crown Court representation

We have an experienced team of crown court litigators and in-house advocates to provide you with expert crown court representation.  An important part of the preparation of your case will be to see whether the prosecution can be put in a position where it has to drop your case before trial.

If you wish to instruct Caine in a case then please telephone him on 0115 9599550 or 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

Criminal Finances Act 2017 – What You Need to Know

Change Ahead

The main provisions of the Criminal Finances Act 2017 came into force on 30th September 2017, and there are some important effects that any business ought to know.

New Provisions

criminal finances act 2017While tax evasion is already an offence, currently there is no obligation on a company to take steps to stop another person engaging in such illegal activity. With a few exceptions, if you do not personally participate, you can stand idly by while another person offends. These provisions bring this situation to an end so far as certain aspects of taxation are concerned.

How?

 

The Act will render any business (which includes partnerships) liable to prosecution if a ‘tax offence’ is committed by an employee or other person performing services for the company. This will include agents of the business.

To be guilty, the following must apply:

  • There has been a criminal evasion of tax (whether that resulted in prosecution or not).
  • An ‘Associated Person’ facilitated the commission of that offence (i.e. a person linked to your business).
  • A failure by the firm to prevent that facilitation taking place.
    The final requirement imposes a strict liability element. Those running the business need not know that anything unlawful was taking place.

The definition of ‘Associated Person’ is broad. It means: ‘…an employee, a person acting in the capacity of an agent, or any other person who performs services for or on behalf of your company who is acting in the capacity of a person performing such services’.

The provisions apply in relation to both UK and foreign offences.

Do you have a Defence?

The good news is ‘Yes’.

But only if you can prove:

(a) That you had in place such prevention procedures as it was reasonable in all the circumstances to expect you to have in place; or

(b) It was not reasonable in all the circumstances to expect you to have any prevention procedures in place.

Therefore, your business needs to have reasonable safeguards in place to be able to try and prevent tax evasion.

What is the Penalty?

Your company could face an unlimited fine.

At the moment, although there aren’t any sentencing guidelines, we can reasonably anticipate these to be very large. In some cases these will be measured in the tens of thousands of pounds and above.

Additionally, you would also need to try and measure the reputational and other damage (such as loss of future contracts) that might follow.

That Doesn’t Sound Good, What Can I Do To Protect My Company?

Your business will need to commit to policies and processes designed to prevent your employees and others committing tax facilitation offences. There is no ‘one size fits all’ policy toolkit that you can purchase off the shelf.

To devise such procedures, you will need to:

  • Carry out a risk assessment.
  • Decide on what is a proportionate response to that risk.
  • Ensure top-level commitment within the organisation to implementing any policy/procedure.
  • Maintain due diligence.
  • Communicate the policy/procedures and train all employees/agents who carry out work on your behalf.
  • Monitor and review the policies and procedures to ensure continued effectiveness.

We Will Certainly Put This On Our ‘To Do’ List

While HMRC doesn’t expect you to have everything in place on 30th September 2017, it does have some ‘day one’ requirements, with HMRC stating in its guidance that:

‘[We expect] there to be rapid implementation, focusing on the major risks and priorities, with a clear timeframe and implementation plan on entry into force.’

Need help?

Laws relating to business can be challenging at the best of times, but when they could also land your company before the courts and facing crippling fines, it is best to act in advance and do all you reasonably can to put protections in place.

The provisions of the Criminal Finances Act 2017 are only summarised above; it will hardly surprise you to know that they are in fact much more complex, so you should take care to understand in detail your actual obligations.

Read more about our business defence services here.

Contact us for advice

criminal finances act 2017
Nottingham solicitor Martin Hadley

Should you wish to discuss any aspects of the Criminal Finances Act 2017 or wish specific advice then please contact partner Martin Hadley at our Nottingham office on 0115 9599550 or email him here.

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Studying and working in the law – advice given to local students

Education Law and Criminal Defence Solicitor Clare Roberts was welcomed by students at West Bridgford School on the afternoon of Monday 21 September.  Following an invitation she delivered a talk about ‘Routes into Law’ to sixth form students who are contemplating studying law at university.

The talk focused on university applications including what to do if you do not get your expected grades, as well as the proposed changes in the route to qualification as a result of the proposed scrapping of the Legal Practice Course in 2020.

Clare also spoke with students about ‘a day in the life of a solicitor’ so that they had a sense of what a day at court was like, including the unpredictable hours!  Further information about the unpredictable nature of the work can be found here.

The students who attended the talk had lots of questions to ask about studying law at university.  Clare was also able to help with how the training within a firm thereafter will work.

Clare was really impressed with how knowledgeable the students were about their career options but also impressed by the careers education scheme run by Caroline Nolan at the school, which sees a variety of different professionals give talks to sixth form students at the school over the next few months.

Positive feedback for Clare’s presentation

It appears that the students were equally impressed by Clare, who received some positive feedback.  We hope we will be able to assist this and other schools again in the future.

If you think your students might be helped by a presentation such as this one then please contact us using the form below.  It is likely that we will be able to provide a solicitor local to your school or college to assist with any information you might need.

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News

Charge of supply of psychoactive substance dismissed

Nottingham crime and duty solicitor Jameel Malik represented a client who had been arrested of intentionally supplying a psychoactive substance into prison.  The recipient of the drugs was said to be her son in HMP Nottingham.

Supply of a psychoactive substance?

Following a prison visit from his mother, our client’s son had been randomly selected for a search.  He was wearing two pairs of boxer shorts and was in possession of green vegetable matter.

Once forensically examined, this was found to be a psychoactive substance with a weight of 103g.  The value of the substance if sold in prison by the gram was a little over £10 000.

Free and independent legal advice in police interview

psychoactive substance not guilty verdictJameel had first met his client in the police station when she had requested the free and independent legal advice of the duty solicitor.  She had given an account to the police in interview denying passing her son the psychoactive substance.  She did accept that she might have passed him a note or a bar of chocolate.

CCTV footage of the prison visit was produced by the police in interview. This showed his client and her partner in the visiting hall.  Both sat down at the table with our client’s son.  The CCTV footage clearly showed Jameel’s client pass something to her son who then placed two packages in his boxer shorts.

Proceedings at Nottingham Magistrates’ Court

psychoative substance nottingham solicitor
Nottingham Magistrates’ Court

Our client was charged with supplying a psychoactive substance.   The issue for trial was whether she had passed her son the substance during the visit.

Jameel provided advice about whether the case ought to remain in the Magistrates’ Court or be allocated to the Crown Court.  He successfully argued that trial could be dealt with before the Magistrates’ Court.

The matter proceeded to trial.  The CCTV footage was played.  Agreed evidence was read as to how the prison officers had retrieved the psychoactive substance.  The expert report proving the nature of the substance was also read, as were procedural issues relating to visitor searches.  Finally, our client’s interview with her denials were read out.

Submission of no case to answer

Having considered the evidence, Jameel then decided that it was appropriate to make a submission that there was insufficient evidence to allow the case to proceed.

He argued that even taking the prosecution case at its highest there was simply insufficient evidence to show that it was his client who had supplied the substance to her son.

He highlighted the following:

  • the amount of the substance was of significant size.  This was not discovered upon his client’s entry into the prison
  • the CCTV footage did not show what was passed
  • his search was actually two hours after the visit rather than immediately after the visit had taken place
  • there was a significant opportunity for the substance to have been acquired at another time during the morning.

Case dismissed

The Magistrates retired to consider the submission.  Upon their return they stated that they did not believe that the prosecution had  sufficient evidence to provide a case for Jameel’s client to answer.  The case was dismissed.

Instruct a criminal solicitor in Nottingham

If you are investigated for an offence then you will want to instruct a firm of solicitors that will try and provide you with continuity of representation between your initial arrest and final disposal in the Magistrates’ court.

We will try to make sure that you keep the same solicitor throughout your case to avoid you seeing a number of new faces and having to explain your account on more than one occasion.

psychoative substance supply magistrates trial
Notingham duty solicitor Jameel Malick

Don’t forget that our independent advice and representation in the police station will always be free of charge, and you may be entitled to free Magistrates’ Court representation under our legal aid contracts.

If you want to instruct Jameel in a case then please call him on 0115 9599550 or use the contact form below.

 

News

Res Gestae evidence – does the prosecution need a complainant?

res gestae derby legal aid solicitor vhs fletchers
Derby criminal law specialist John Young

Derby criminal lawyer John Young has been instructed in cases involving allegations of domestic violence.  The complainants in the cases have not supported the prosecution.  This was indicated at a very early stage.  None of the witnesses made statements when the police were investigating the allegations.  The prosecution try to rely on res gestae evidence.

As a result, the prosecution has sought to rely entirely on hearsay evidence.  In particular, the res gestae exception as preserved by Section 11(4) Criminal Justice Act 2003 has been relied upon.

The test for admitting res gestae evidence

Evidence amounts to res gestae when “the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded”.

This principle has been developed in subsequent case law.  As a result the following points have been established which the court should consider in deciding whether to allow a Prosecution application to admit the evidence:

  • Ultimately, the Court has to determine whether the possibility of concoction or distortion can be disregarded;
  • The court will need to look at the particular circumstances in which the relevant statement has been made.
  • It must be satisfied that that the event was so unusual, startling or dramatic that it was the predominant thought of the witness. Their statement was an instinctive reaction so there was no real opportunity for reasoned reflection.
  • The statement must be closely associated with the relevant event.  The court must be sure that the event was still operating to effect the mind of the witness when the statement was made.
  • Does the case have particularly features which relate directly to the possibility of concoction or distortion.  This might include evidence of fabrication. The court must be satisfied that there was no such possibility of concoction or distortion.

Any issues such as mistakes in the account given are not matters relevant to admissibility of the evidence but factors the court will consider in deciding what weight to give to such evidence.

There is clear case law that the prosecution should not make an application to admit res gestae to circumvent other statutory hearsay provisions.

What evidential matters will the court look at?

The issue of the timing of the statement will be key to any application.  These will include

  • when the victim called the police
  • how soon after the incident the victim gave the account said to be res gestae

These are not the only factors that the Court should consider however.   The Court will also need to look at

  • whether there is any supporting evidence for example visible injuries
  • the victim’s demeanour when first witnesses attend
  • their subsequent words and behaviour
  • is there an accurate transcription of recorded evidence such as 999 calls, police bodycam footage or CCTV evidence
  • where the victim has made more than one statement, the accuracy and consistency of those statements will need careful consideration
  • If there has been more than one telephone call or electronic communication have been made by the same person?

Ultimately each case has to be considered on its own facts.

Should the prosecution give notice of an application?

The Criminal Procedure Rules do not require the prosecution to give notice of an application to admit hearsay evidence under the res gestae principles.  Any notice given very much depends on the prosecutor dealing with the particular case.  Where an application is made in advance and refused the case will end at that stage unless there is other admissible evidence to secure a conviction.

Even where a court admits res gestae evidence it must still evaluate that evidence in the usual way.  The prosecution must still proved its case to the required standard.

Exclusion of evidence under section 78 PACE 1984

A defendant has an opportunity to apply to exclude evidence of res gestae.  If a court has admitted the evidence, application can be made under Section 78 of Police and Criminal Evidence Act 1984.  The court has a discretion to exclude evidence which would otherwise be admissible.

For example, there may be cases where the prosecution have failed to take sufficient steps to ensure a witness’s attendance at court. The prosecution might have purported to tender the prosecution to the defence.  This means that the defendant would be at liberty to call the witness.

Circumstances like these might permit a persuasive argument that the defendant has been denied an opportunity to test the evidence through cross examination of the witness.

An application to admit hearsay evidence should be an application of last resort.  In many cases the prosecution will attempt such an application when a witness might be available to give evidence as to the facts.

In the case of R v Andrews it was stated that a court should “strongly deprecate any attempt in criminal prosecutions to use the doctrine [of res gestae]as a device to avoid calling, when he is available, the maker of the statement”.

Contact a specialist criminal defence solicitor

On behalf of a defendant, a solicitor must make sure that the prosecution does not use a res gestae application to place otherwise inadmissible hearsay evidence before the court.  Solicitors must ensure that the statutory and procedural safeguards are used to ensure a defendant’s right to a fair trial.

A defendant will wish to instruct a solicitor who is alive to all of the issues relating to this evidence and prepared for an argument at short notice against the admissibility of re gestae.

If you face allegations before the court where the decisive evidence res gestae hearsay evidenceis that of an absent witness then contact your nearest office to speak to a specialist criminal defence solicitor.  Alternatively you can use the form below.

Legal aid will often be available to ensure that the defence of your case will be free of charge to you.

Contact

 

News

Mansfield motoring law solicitor secures suspended sentence for client

Mansfield motoring law solicitor Emma Cornell persuaded Magistrates to impose a sentence that dealt with the issues underlying her client’s offending.

An inevitable prison sentence?

Emma first met her client in the cells at Mansfield Magistrates’ Court.  He had been kept by the police for a remand into custody.  This was because he faced new charges of drink driving and driving whilst disqualified.

Unfortunately, these charges were his eighth relating to excess alcohol and third for driving whilst disqualified.  He had received prison sentences for all of his more recent offences.

The seriousness of these offences was aggravated by his history of offending and because he was driving in breach of a court order.

Breaking the cycle of offending?

Sometimes it is right for a court to try and break a cycle of offending.  In this particular case it was clear that Emma’s client had a problem with alcohol.  When in drink he made poor choices and this led to the offending that kept on bringing him back to court.

The maximum sentence that could be imposed in his case was one of six months imprisonment, even for the combination of offences.  As he had pleaded guilty at the first opportunity the sentence was likely to be less than the maximum, even bearing in mind his record.

This meant that he would serve less that 3 months in prison.  He would not receive any assistance while in custody to address his problems.  It seemed unlikely that any meaningful work would be done by probation under licence following his release.

An alcohol treatment requirement

The Magistrates were therefore presented with a stark choice.  Emma persuaded them that there was a better option than a simple prison sentence.  These sentences had failed to work in the past in terms of deterrence or rehabilitation.

After hearing Emma’s persuasive mitigation the Magistrates adopted the probation recommendation.  This was for a suspended sentence coupled with an alcohol treatment requirement.  The aim is to reduce or eliminate a person’s dependency upon alcohol.  This is made possible by the help of specialist agencies working in the community.

Positive client feedback

mansfield motoring law solicitorEmma’s client knew how close he had been to receiving a further prison sentence.  As a result he took the time to write a card and buy flowers to reflect the work Emma carried out on his behalf.  While such thanks is not expected, it is always gratefully received.

Contact Mansfield motoring law solicitor Emma Cornell

mansfield motoring law solicitor emma cornell
Mansfield road traffic solicitor Emma Cornell

Whether you need advice on a police investigation or documentation that you have received from the court then you will wish to contact Mansfield motoring law solicitor Emma.

She will advise you on whether you have a potential defence or whether, for example, special reasons or exceptional exist to avoid a driving disqualification.

Please call her on 01623 675816 or use the contact form below.

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