Tag Archives: solicitor

News

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.

racially aggravated
VHS Fletchers offices across the East Midlands

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News

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.

Criminal damage
VHS Fletchers East Midlands offices

 

News

New Sentencing Guidelines for Manslaughter Offences

The Sentencing Council, responsible for setting sentencing guidelines in England and Wales, has today issued a new sentencing guidelines for manslaughter offences.

Which offences are covered by the new sentencing guidelines for manslaughter offences?

The guideline covers:

  • Unlawful act manslaughter – a common law offence
  • Gross negligence manslaughter – a common law offence
  • Manslaughter by reason of loss of control – a statutory partial defence to murder (sections 54 and 55 of the Coroners and Justice Act 2009)
  • Manslaughter by reason of diminished responsibility – a statutory partial defence to murder (section 2 of the Homicide Act 1957)

The offence of corporate manslaughter is covered by the Council’s health and safety sentencing guidelines.

new sentencing guidelines for manslaughter offences

When does the guideline take effect?

The sentencing guideline for manslaughter offences applies to all offenders sentenced on or after 1 November 2018.  This means that if you are charged before the guideline comes in to force, you may still fall to be sentenced in accordance with it if you plead guilty or are convicted.

What are the different types of manslaughter?

Unlawful Act manslaughter

This is the most commonly prosecuted form of manslaughter and includes deaths that result from assaults where there was no intention to kill or cause very serious harm.  The circumstances can vary greatly.

For example, it could involve a situation where two friends briefly argue and one pushes the other causing him to fall and hit his head with fatal results.

Alternatively, it could involve someone going out looking for a fight and attacking someone forcefully but not intending to kill.

It could also include unintended deaths that result from other crimes, such as arson or robbery.

105 offenders were sentenced for this offence in 2016.

Gross negligence manslaughter

This occurs when the offender is in breach of a duty of care towards the victim which causes the death of the victim and amounts to a criminal act or omission.

The circumstances can again vary greatly. In a domestic setting it could include parents or carers who fail to protect a child from an obvious danger. In a work setting, it could cover employers who completely disregard the safety of employees.

Just 10 offenders were sentenced for this offence in 2016.

Manslaughter by reason of loss of control

This arises if the actions of an offender, who would otherwise be guilty of murder, resulted from a loss of self control.  An example might be where there was a fear of serious violence.

12 offenders were sentenced for this offence in 2016.

Manslaughter by reason of diminished responsibility

Someone guilty of this offence would have been suffering from a recognised mental condition that affected their responsibility at the time of the offence, without which they would have been convicted of murder.

26 offenders were sentenced for this offence in 2016.

Why has this guideline been issued?

The new sentencing guidelines for manslaughter offences will  ensure there is comprehensive guidance where previously such guidance was very limited.

Until now, there has been a guideline only for corporate manslaughter, which comes under the Council’s health and safety offences guideline.  The only other guideline  was issued by the Council’s predecessor body for manslaughter by reason of provocation.  This is now out of date following legislative changes to the partial defences to murder.

The full guideline can be found here:

Manslaughter Definitive Guideline

Will sentence length increase?

The Sentencing Council predicts only a minimal impact, suggesting that only around ten extra prison places will be needed per year as a result of the guideline.  It cautions, however, that ‘it is difficult to ascertain how sentence levels may change under the new guideline.’

Experience tells us that there is a certain degree of sentence length ‘creep’ following the implementation of new guidelines. Our advocates are trained in the use of all sentencing guidelines and equipped to ensure that judges apply them correctly.

Contact a criminal law specialist

As the new sentencing guidelines for manslaughter offences show, manslaughter will always be treated seriously by the courts.  The issues that arise in the defence of such cases will be complex.

As a result, if you are arrested or know that the police wish to speak to you about an offence of manslaughter 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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News

Doctors in the Dock – appealing the Medical Practitioners Tribunal

Many in the medical profession have been up in arms following the recent High Court decision involving Dr Bawa-Garba (General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin), overturning the decision of the Medical Practitioners Tribunal.

medical practitioners tribunal serviceThe case had followed on from proceedings before the Medical Practitioners Tribunal which had ruled that Bawa-Garba should be suspended from practice for a period of one-year. That ruling was challenged by the General Medical Council, resulting in Bawa-Garba being erased from the medical register, which brought to an end her right to practice medicine.

The High Court observed that it reached ‘this conclusion with sadness but no real hesitation’.

Medical Practitioners Tribunal Decision Appealed

On appeal against this decision, the Court of Appeal has heard her removal for a “one-off mistake” had robbed the NHS of a “young and talented” doctor.  The original decision to suspend rather than dismiss the doctor was argued to be “humane and balanced”, whereas the GMC have argued that  “any other sanction undermined its rules and her manslaughter conviction.”

So, what is the background to this unhappy story?

medical practitioners tribunal
Nottingham Crown Court

In November 2015 Bawa-Garba was convicted at Nottingham Crown Court for an offence of manslaughter by gross negligence. She was sentenced to two years imprisonment, which was suspended.

This conviction came about due to her negligent care of a six-year-old boy, who died. An appeal against conviction in December 2016 failed.

In the later High Court proceedings, it was observed that ‘her failings on that day were “truly exceptionally bad” and that this must be reflected in the sanction.

So, why did the Medical Practitioners Tribunal (MPT) only order a suspension?

medical practitioners tribunalWhen the MPT heard the case, it had the benefit of hearing a substantial body of evidence about the pressures placed on Dr Bawa-Garba and the failings of others. In essence counsel for the GMC submitted that the Tribunal had in effect allowed evidence of systemic failings to undermine Dr Bawa-Garba’s personal culpability, and to do so even though those failings had been before the Crown Court which convicted her.

The Tribunal had therefore decided to find the Doctor less culpable than the jury had as a matter of law, and for that reason, the decision could not stand.

The High Court observed:

“The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance.

There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad.”

A crowd-funding campaign to assist Dr Bawa-Garba was set up. One of the doctors behind the crowdfunding campaign, Dr Moosa Qureshi, said:

”There needs to be greater transparency as to why these decisions were made and who made them. Many of us feel that Dr Bawa-Garba was unfairly discriminated against and scapegoated for multiple system failings that could easily have happened to any of us in the current political crisis of the NHS. We want patients to be protected and for this doctors need to be able to look after patients without fear that they will be blamed or worse struck off when working in unsafe and dangerous conditions.’

So, many believe that Bawa-Garba has been made a scapegoat for systemic failings in the NHS.

In a further twist to this story, the previous Health Secretary Jeremy Hunt ordered a review into criminal manslaughter so far as it affects medical practitioners.  The health secretary stated that clarity was needed about drawing the line between gross negligence and ordinary errors, and that ‘Doctors should learn from – not fear – mistakes.’

medical practitioners tribunalThe review, led by Sir Norman Williams (a former President of the Royal College of Surgeons), reported in June 2018.  In the introduction to the report, Sir Norman wrote:

“We hope our recommendations will change the environment by establishing a just culture and providing reassurance to healthcare professionals, patients and their families that gross negligence manslaughter cases will be dealt with in a fair and compassionate
manner.”

The full report can be found here.

By any measure this is a sad case for all concerned and criminal practitioners will be keeping a watchful eye on the outcome of the Court of Appeal case.

Contact a crime and regulatory law specialist

medical practitioners tribunal
Crime and Regulatory solicitor Martin Hadley

If you are a professional person facing criminal proceedings then please contact our criminal and regulatory partner Martin Hadley immediately.

Martin will be able to provide free and independent legal advice in police interview.

If charged, we will provided affordable representation before either the Magistrates’ or Crown Court, and be able to provide advice with an eye to any future potential disciplinary proceedings such as those before the Medical Practitioners Tribunal.

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News

Extradition – an introduction

Extradition is the formal process where one country asks another to return a person to stand trial or to serve a sentence. Under multilateral conventions and bilateral extradition treaties, the UK has extradition relations with over 100 territories around the world.

What Is the Process?

The requesting State contacts the UK authorities and makes an extradition request. This may result in a warrant being issued against you, and court proceedings commenced.

It might be the case that you fear an extradition request will be made in the future – if so, you should contact us without delay so that we can advise on the options available.

Save in very exceptional circumstances your case will be heard before a District Judge sitting at Westminster Magistrates’ Court in London.

Once formalities are dealt with, the court will consider whether the tests for extradition are met. In some cases, the final decision will rest with the Home Secretary.

In some instances, a case can be disposed of very quickly, in others, it will involve a contested hearing.

The exact process will depend on which extradition regime is being applied, as it varies between requesting States.

Do I Need a Solicitor?

Yes, is the simple answer. Extradition Law is incredibly complex, and there are no circumstances where it is appropriate to try and navigate your way through this legal maze.

A duty solicitor will be available at Court to assist you, but even at that stage, you can insist that we are contacted to help – the earlier we are instructed in the proceedings, the better equipped we will be to assist you.

In some cases, it will be appropriate to use specially trained counsel (barristers) who specialise in extradition law.

Experienced extradition lawyers can advise you on the processes and how an extradition request might be opposed.

Bars to Extradition

  • rule against double jeopardy
  • the absence of a prosecution decision (whether the prosecution case against the accused is sufficiently advanced)
  • extraneous considerations (whether the request for extradition is improperly motivated)
  • passage of time
  • the requested person’s age
  • speciality (the requested person must only be dealt with in the requested state for the offences for which they have been extradited)
  • onward extradition (where the requested person has previously been extradited to the UK from a third county, and consent for onward extradition from that country is required but has not been forthcoming)
  • forum (whether it would be more appropriate for the requested person to be prosecuted in the UK instead)

The judge must also decide if extradition would be disproportionate or would be incompatible with the requested person’s human rights (for example the right to family life is a person has been settled in this Country for some time). If the judge decides it would be both proportionate and compatible, extradition must be ordered.

Note that the process is different when the final extradition decision is to be made by the Home Secretary.

It is vital that all available evidence is presented during the hearing, and this may involve testimony from experts both in this Country and from abroad.

In a significant number of cases, further avenues of appeal are available to the High Court, and the Supreme Court.

Is Funding Available?

Legal aid may be available depending on your financial circumstances. If you are not eligible for legal aid, then we will be able to offer a privately funded package.

Leave Nothing To Chance

The prospect of being returned to another country to face legal proceedings is daunting; it is, therefore, essential that you seek out expert assistance at an early stage.

If you are unable to locate a specialist solicitor then please contact us and we will be able to point you in the right direction.

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News

The death penalty, extradition and mutual legal assistance

In the UK we have not had the death penalty for over 50 years. The last hanging in England took place in 1964 when Peter Allen and Gwynne Evans were hanged for the murder of John West, 15 months before the death penalty was abolished.

Since then there has been a long-held opposition to the death penalty which has been applied in extradition cases.

What is extradition?

Extradition means legal proceedings for the return of a person in the UK to another country to face criminal proceedings (or proceedings abroad to return a person to the UK).

How is the death penalty relevant?

When the requesting country has the death penalty available, and it could apply to the criminal proceedings in question the UK would usually seek an assurance that the person will not face the death penalty if extradited. If an assurance is not given, then UK law would prohibit the removal from the UK of that person. The death penalty is forbidden under the European Convention of Human Rights.

Why is it in the news now?

Alexander Kotey and El Shafee Elsheikh are alleged to have been involved in the torture and beheading of more than 27 victims as members of a cell of Isis executioners in Syria and Iraq. They are not subject to extradition as they were not arrested in the UK.

They have been stripped of their British citizenship, and discussions have been taking place as to whether they should be returned to the UK for trial or taken to the USA. Victims have been both UK and US citizens.

In an unusual move Sajid Javid, the UK Home Secretary, told the USA that he would not seek an assurance over the use of the death penalty and agrees to the US request for mutual legal assistance. This decision is now on hold pending a legal challenge.

mutual legal assistance

What is mutual legal assistance?

Mutual Legal Assistance is a method of co-operation between states for assistance in investigating or prosecuting criminal offences. The guidelines for Mutual Legal Assistance are similar to the law in extradition outlined above, in saying that if the death penalty is a possible sentence, an assurance will be sought that such a sentence will not be carried out in the event of a conviction.

What are the implications?

Commentators are questioning whether this is a relaxation of the policy of opposition to the death penalty in the UK.  Javid apparently stated in his letter that this does not alter the stance of the UK, but it certainly raises questions as to whether assurances would not be sought in the future and in what circumstances.

The Howard League for Penal Reform has already indicated that it may bring legal proceedings to challenge the decision of the Home Secretary.

How can we help?

Fortunately, individuals cannot receive the death penalty in the United Kingdom.  The alternative, however, is that those convicted can face very lengthy prison sentences and severe restrictions on their liberty if convicted.

We not only help those who are suspected of offences but also provide advice on all aspects of prison law for those already sentenced.

If you would like to discuss any aspect of your case please contact your nearest office or use the contact form below.

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mutual legal assistance

News

Offensive Weapons Bill published by the Government

offensive weapons billThe government has published an Offensive Weapons Bill.  The legislation is designed to signal a more stringent approach to the possession of weapons and liquids that can be used to cause harm, such as corrosive substances.

The Offensive Weapons Bill forms part of the government’s response to the recent rise in serious violence, set out in the £40m Serious Violence Strategy.  This places a new focus on early intervention alongside robust law enforcement.

What is proposed in the Offensive Weapons Bill?

The following provisions feature in the bill:

  • a new criminal offence of selling – both online and offline – a corrosive product to a person under the age of 18. The substances and concentration levels of what constitutes a corrosive product are set out in the Bill.
  • a new criminal offence of possessing a corrosive substance in a public place. There is a defence of possessing the corrosive substance for a good reason. There is a minimum custodial sentence in England and Wales where a person is convicted for a relevant offence a second time. The offence will carry a maximum sentence of 4 years imprisonment.
  • where a corrosive product or bladed product is sold online, the defence of having taken reasonable precautions can only be relied on where the seller meets certain conditions in terms of age verification and packaging and delivery of the items
  • new criminal offences prohibiting the dispatch of bladed products and corrosive products sold online to a residential address. The offence for bladed products is limited to those that can cause severe injury and includes defences for made to order items and those for sporting and re-enactment purposes. The offence will carry a maximum sentence of 6 months imprisonment.
  • new criminal offences in relation to delivery companies delivering a bladed article or a corrosive product on behalf of a seller outside the United Kingdom to a person under 18
  • updating the definition of a flick knife and prohibition on the possession of flick knives and gravity knives (their sale etc. is already prohibited)
  • amending existing law to make it a criminal offence to possess certain weapons (such as knuckledusters and death stars) – the sale and importation of these is already prohibited. It provides for compensation of owners
  • extending the existing offences of possessing a bladed article or offensive weapon on school premises to cover further education premises in England and Wales and Northern Ireland
  • amending the legal test for threatening with an offensive weapon in England and Wales
  • prohibiting high energy and rapid firing rifles and a device known as a “bump stock” which increases the rate of fire of rifles. Existing owners will be compensated.

How we can help

Although the contents of the Offensive Weapons Bill are yet to be made law, in recent months the rhetoric around knife-crime has been ramped up by politicians seeking to respond to public concern about knife-crime.

Judges hear this and often react by imposing increasingly long prison sentences.  These concerns have been reflected in the new guideline relating to sentencing those convicted of possessing offensive weapons.

It is our role to ensure that firstly our clients only enter guilty pleas when such a plea is appropriate.  We will begin to prepare your defence from the very beginning of the investigation, so take advantage of our free and independent legal advice in police interview.

If you are to be sentenced for an allegation involving a weapon or a blade then we will make sure that relevant factors from the background to the offending is properly advanced in mitigation.  The lives of young people in particular may be complex and some of the factors contributing to offending may be hidden.

It is our job to ensure that the full picture is presented to the court.

We provide nationwide advice and representation in criminal cases from our offices across the East Midlands.  You can find your nearest office here.

offensive weapons bill

Alternatively you can use the contact form below:

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News

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.

 

News

Defending a charge of Threats to Kill

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

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

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

Is there a defence to threats to kill?

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

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

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

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

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

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

What sentence can I expect?

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

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

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

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

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

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

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

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

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

If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case.  Legal aid may well be available to fund your defence at court.

We have offices across the East Midlands.  You can find your most convenient office here.   Alternatively you can contact us using the form below.

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News

Successful week at Chesterfield Magistrates’ Court for Denney Lau

Clients of Chesterfield crime solicitor Denney Lau have had a successful week before Chesterfield Magistrates’ Court.

Successful exceptional hardship argument

Denney’s client was guilty of failing to notify the details of a driver when required to do so by the police.  Unfortunately he already had chesterfield magistrates' courtten penalty points on his driving licence.  As a result, the minimum of six penalty points that would be imposed for the new offence would make him liable for a disqualification for a minimum of six months under the totting up procedure.

To avoid this, Denney successfully argued before the Chesterfield Magistrates’ Court that his client would suffer exceptional hardship if he was to be disqualified.  Although any disqualification is likely to lead to hardship, in this case our client would not only lose his employment as a driver but also his home.  He would be unable to continue with the additional responsibilities that he had for his grandchildren.

Our client was relived that he was able to keep his driving licence although it now had sixteen penalty points upon it.

Not guilty of driving whilst disqualified

Two days later, Denney represented another client who was standing trial at Chesterfield Magistrates’ Court in relation to an allegation of driving whilst disqualified.

A police officer had intelligence suggesting that our client had been using a particular vehicle whilst disqualified and therefore without insurance.  The police saw the vehicle.  There was a pursuit and when the vehicle came to a halt three people ran away from the vehicle.

The officer claimed that he was sure that the driver of the vehicle was Denney’s client.  This was disputed at trial.

chesterfield magistrates' courtChallenging police evidence can often be difficult.  It is the case that Magistrates are often more persuaded by the evidence of an officer than by that of a defendant.  Denney conducted his own research into the credibility of the officer in question.  He found that the officer had appeared before the police disciplinary panel for misconduct recently.  That misconduct was that he had deliberately made a wrong entry onto the Police National Computer.  As a result the officer had received a warning about his conduct.

In order to have this information before the court, Denney had to make a successful bad character application.  Aside from cross-examining the officer about the disciplinary finding, Denney also asked him detailed questions about the difficult circumstances of the identification.

After considering the evidence in the case the magistrates found our client not guilty of the offences.

Denied shop theft allegation

Four days after that a different client stood trial at Chesterfield Magistrates’ Court in relation to an allegation of shop theft.  In this case a store manager claimed that he had witnessed a theft, identified our client from CCTV and then given chase before our client left the scene in a vehicle.

Our client had, unfortunately, chosen not to take advantage of our free and independent advice in police interview.  He had, however, stated that he did not recall being involved in such an incident.

chesterfield magistrates' courtIn preparation for what could be a difficult trial Denney closely examined the CCTV footage.  He discovered that the offender’s face could not be seen.  As a result, this cast doubt on the identification made by the store manager.

In his closing speech, Denney argued that the Magistrates needed to examine closely the circumstances in which the identification was made.   Mistakes can be made in recognition of close relatives and friends can sometimes made be made.

Again, having heard Denney’s argument and considered the evidence the court found his client not guilty.

Seek our representation before Chesterfield Magistrates’ Court

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Chesterfield crime solicitor Denney Lau

You can ensure that you are represented by Chesterfield crime solicitor Denney Lau by phoning 01246 387999 and making an appointment to see him.  Contact him in advance of any police interview or court appearance and if he is available then he will be with you, or make arrangements for one of his experienced colleagues to attend instead.

Alternatively you can use the contact form below.

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