Tag Archives: solicitor

News

Free police station advice from accredited representative

In readiness for the opening of the new Chesterfield office we have been putting together new website profiles for the lawyers based there.

Accredited police station representative Rob Lowe has provided the detail of several examples of recent free police station advice that he has given.  Each illustrate the advantages of seeking his free and independent legal advice before speaking to the police in an interview under caution.

Mansfield police station – domestic assault allegation

Rob attended Mansfield police station to represent a suspect who had been arrested for an allegation of an assault in a domestic setting.  The officer in the case provided Rob with disclosure of the evidence in the case permitting him to take instructions from his client before interview.

The evidence provided failed to implicate Rob’s client in an offence.  As a result, Rob formed the view that there was not a case for him to answer.  He made immediate representations to the custody sergeant that his client should be released immediately without interview.

The sergeant agreed, and Rob’s client was released without charge, without the need for an interview.

It is perhaps hard to imagine that this outcome would have been secured without the benefit of Rob’s free police station advice and representation.

Liverpool police station – assault allegation

free legal advice and representation liverpoolRob travelled to represent his client at Liverpool police station.  he had been arrested on suspicion of assault.  He advised his client to answer questions and make a counter complaint.

This advice led to our client being released without charge.  Instead, the initial complainant ended up being interviewed under caution by the police himself.  This was as a result of the advice given and the representations that Rob made to the investigating officers.

Chesterfield police station – shop theft

free police station advice
Chesterfield police station

Part of Rob’s role in when representing a client at the police station is to negotiate with the police.  In this case, his client was accepting guilt in relation to allegations of shop lifting.

The custody sergeant was concerned about a risk of re-offending and intended to keep our client in custody overnight to be placed before the Magistrates’ Court for a remand into custody the next day.  After taking into account the representations that Rob made about bail, the custody sergeant reconsidered his initial view and agreed to grant bail.

Again, without representation, it would appear unlikely that this suspect would have been released, with nobody to negotiate on their behalf.

Chesterfield police station – drug investigation

Here, Rob was instructed by a client who had been arrested on suspicion of drugs offences.  Rob considered it appropriate for his client to deny the offences for which he had been arrested.  His client was, however, reluctant to submit to extensive questioning by the police.

As a result, Rob advised that an alternative to answering questions would be to submit a prepared statement in interview setting out his defence.  He would then be able to make ‘no comment’ replies to any other questions put. This would be sufficient to remove the risk of an inference being drawn at any future trial.

Rob’s client was released to allow the police further time to investigate the offence and his defence.

Contact us for free police station advice

If you are unlucky enough to be interviewed by the police, whether while under arrest or as a volunteer, or in the police station or elsewhere, you are entitled to legal representation.  As we have a legal aid contract then we can provide you with free police station advice.

free police station advice
Chesterfield accredited police station representative Rob Lowe

If you are arrested then make sure the police ask for VHS Fletchers to represent you.  If you know that the police want to speak to you as a volunteer then contact us with the date and time and we will make sure that we are there on time to remove any delay.

Rob Lowe can be contacted at our new Chesterfield office at 5 Beetwell Street, 100 metres away from Chesterfield police station.  Our new phone number is 01246 387999.

Your nearest office can be found here. and all of the numbers are answered 24 hours a day, 7 days a week.

Alternatively use  the form below.

Contact

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.

knife crime
VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below.

News

Dangerous dog prosecutions – avoiding the destruction of your dog

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

Section 10 of the Dangerous Dogs Act 1991 states that:

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

Penalties

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

A discretion to order destruction?

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

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

(a) must consider—

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

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

(b) may consider any other relevant circumstances.

Avoiding Destruction of a ‘dangerous dog’

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

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

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

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

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

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

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

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

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

What we can do to help

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

Instruct an expert in defending dangerous dog prosecutions

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

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

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

defending dangerous dog prosecutions solicitors
Our offices across the East Midlands

Alternatively, you can use the contact form below.

Contact

 

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
News

The Law Society Campaign to restore Legal Aid for Early Legal Advice

In 2015/16, Ipsos MORI conducted a study on individuals’ legal needs on behalf of the Law Society and the Legal Services
Board (LSB). The main component of the study was an online survey to examine individuals’ experiences of 29 legal issues and the effect of receiving early legal advice.

Large scale survey about the effect of early legal advice

The survey provided quantitative findings from 8,192 participants, which examined the responses from 16,694 issues
experienced.

This included issues relating to

  • divorce/dissolution of civil partnerships
  • debt/money issues
  • injury at work
  • road traffic accidents
  • personal injury
  • legal issues with mental health issues
  • repossession or eviction
  • neighbour disputes
  • relationship breakdown issues
  • welfare benefits; discrimination
  • being arrested
  • legal issues related to children
  • immigration
  • domestic violence
  • homelessness
  • unfair treatment by the police

These are all issues which may be handled using legal processes but are not necessarily seen as being ‘legal’ in nature by those experiencing them.

early legal advice

The results of the analysis

This report outlines results from analysis comparing the effects on the timing of the resolution of individuals’ legal issues of receiving early professional legal advice compared to not receiving it.

The analysis showed that early advice has a statistically significant effect on the timing of the resolution of people’s legal issues.

Specifically, the analysis showed that for these issues:

  • On average, a quarter (25%) of people who received early professional legal advice had resolved their problem within 3-4 months of the problem first occurring, whereas for people who did not receive early legal advice it was not until 9 months after the issue had first occurred that 25% had resolved their issue.
  • Correspondingly, and controlling for other factors that can affect problem resolution, people who did not receive early advice were 20% less likely than average to have resolved their issue at a
    particular point in time.
  • The main other factors affecting problem resolution were the severity of the issues, and people’s previous knowledge of their legal rights. More severe problems, as would be expected, take longer on average to resolve, and people with little previous knowledge of their legal rights were 33% less likely than average to have resolved their issue at a particular point.
  • Early professional legal advice was defined as ‘within 3 months of the issue first occurring’ as analysis showed that this is a reasonable definition on average across the 17 issues considered.
  • Professional legal advice covered advice from a solicitor, or other professional advisers such as Citizen Advice Bureaux or
    trade unions.

As a result, the report stressed the importance of restoring the ability for individuals to seek early legal advice by receiving legal aid.  Advice and assistance in police interview remains free of charge to all.  Find out more about that here.

The Law Society is campaigning for the restoration of access to early legal advice under the legal aid scheme here.

The link to allow you to easily email your MP can be found here.

early legal advice

News

Trainee Solicitor at Nottingham Law Centre

As part of his training, trainee solicitor Elliott Moulster has been seconded to work at the Nottingham Law Centre in order to obtain a broad range of experience prior to qualification.

This firm enjoys a close relationship with the Nottingham Law Centre.  Solicitor Andrew Wesley is the chair of the Board of Trustees for the Law Centre, responsible for oversight and some strategic management, in a pro bono role.

nottingham law centreNottingham Law Centre is located directly opposite the Hyson Green Market in Radford, Nottingham.  It specialises in providing free legal advice and representation in the areas of housing law, debt and social security law.  As a result, it advisers try to assist some of the most vulnerable in society.

Elliott has begun to work alongside Diana Bagci who is part of the Law Centre’s Social Security Team, providing particular assistance to the local Roma community.

Elliott has now spent his first week in this busy not for profit organisation.

Monday

The week started with introductions to everyone who works and volunteers at the Centre.   Elliott received the warmest of welcomes from everybody that he met.

Before being trusted with providing advice, Elliott began to receive his training.  He had the opportunity to sit in on many client appointments.  What impressed him most about this first day was  the professionalism and empathy that staff members showed when dealing with cases that were both deeply personal and of extreme sensitivity.

Tuesday

After spending Monday meeting clients and advisers, Elliott spent much of Tuesday at Nottingham Law Centre reading some of the relevant law and guidance relating to benefits.

He acquainted himself with the regulations concerning the Employment Support Allowance (ESA), Job Seekers Allowance (JSA) and the rules surrounding other benefits such as Universal Credit.

Elliott had further opportunities to sit in on further client interviews during the course of the day.

Wednesday

Elliott attended a meeting about combating modern slavery in the East Midlands.   This event opened his eyes to the prevalence of such practises in the United Kingdom.  This valuable insight will allow Elliott to help understand the experience of those clients who are victims of modern slavery.

Thursday
nottingham law centre
Law Centre’s Network logo

The first half of Thursday was spent drafting a detailed letter to the Social Security Tribunal. The purpose of this letter was to make representations in support of an application to reconsider a previous decision of the tribunal.  It was believed that the tribunal decision was in error, but that the problem could be rectified.

In the afternoon, Elliott attended a local Community Centre. This was to offer practical advice and assistance to members of the local Roma Community.  Again, he found the experience very educational.  He experienced a culture in some ways different to his own, and appreciated the opportunity to provide advice away from an office setting speaking directly to those in the community.

Friday

Unfortunately Elliott was unable to avoid returning to VHS Fletchers today to prepare some of Health and Safety prosecutions that he is working on.  He will, however, return to Nottingham Law Centre next week to begin to provide advice.

Contact Nottingham Law Centre

While we are able to provide you with specialist advice relating to crime, regulatory, road traffic, education and prison law matters, we cannot give you advice on all topics.

As a result, if you require advice about housing law, debt or benefits entitlement then we do not hesitate to recommend the excellent service provided by the Law Centre.

Information about how to contact the Law Centre can be found here.

News

Money laundering and Bitcoin

Bitcoin and other crypto-currencies are never far from the news.  This is most recently because the value of Bitcoin rose considerably in the latter part of 2017, the market then crashing.  It is a currency that permits criminal activity for those involved in money laundering.

It is an odd ‘currency’, as it is not backed by any government, and certainly not by an underlying gold stock.  It is, in fact, nothing more than a virtual object that has a value dictated solely by supply and demand – indeed that is one of the few characteristics that it shares with conventional currency.

Currency attractive for money laundering

So, why the attraction? Why would a person wish to convert £10,000 into one bitcoin, or a lesser amount for a share of one?

One of the main attractions of bitcoin is that it exists across borders, money launderingoutside of traditional banking controls and with a secure cloak of anonymity.  Those three magic ingredients make this type of currency attractive to those seeking to launder the proceeds of crime.

Nobody is interested in the identity of the trader.  The proceeds can be cashed in almost anywhere in the world.  There are even cash machines in some countries including England.  Blockchain encryption has rendered law enforcement impotent in this brave new world of international finance.

This explains the rise in value.  In just one year it rose to thirteen times its value at the end of 2016.

But, the larger the sums that need to be laundered, the more complex and risky it is to make those initial transactions.  That is where the middle-man comes in.  He or she will be a person either knowingly or unwittingly agreeing to purchase bitcoin, or, more commonly, transfer monies on behalf of a money launderer.  They will take a fee for his or her trouble along the way.

Sometimes the amount could be as little as a few hundred pounds but extrapolated this sum becomes significant. Such individuals are known as ‘money mules’.

Government regulation to fight money laundering

The government is keen to regulate these new currencies, and in a recent statement to parliament the treasury minister said:

“The UK Government is currently negotiating amendments to the 4th Anti-Money Laundering Directive that will bring virtual currency exchange platforms and custodian wallet providers into Anti-Money Laundering and Counter-Terrorist Financing regulation, which will result in these firms’ activities being overseen by national competent authorities for these areas. The Government supports the intention behind these amendments. We expect these negotiations to conclude at EU level in late 2017/early 2018.”

Until these protections are in place, people will be able to assist in money laundering enterprises, with little that the authorities can do to stop it.

Up to fourteen years for money laundering offences

money launderingIt perhaps sounds the stuff of fiction, but in the first nine months of 2017, there were over 8652 ‘money mule’ cases identified by Cifas, the fraud prevention service. This criminality represents just the tip of a money laundering iceberg.

The penalty if caught is potentially significant, with sentences of imprisonment as long as 14 years available to a court.  If someone close to you seems to have come into money, you may want to start asking questions, before it is too late.

More information can be found on this government website.

 

Contact us for specialist legal advice

money laundering
VHS Fletchers offices across the East Midlands

When a person becomes unwittingly involved in money laundering it is important to step back from the position as seen with the benefit of hindsight and examine what truly went on. A careful forensic analysis of the circumstances will reveal any defences available to someone suspected of money laundering crimes. Making a silly mistake is not yet a crime.

If you need advice about money laundering or any other criminal law matter then please contact your nearest office.  We will be able to provide you with free and independent legal advice in any police interview, and advise you on the availability of legal aid should your case come to court.  Alternatively, you can get in touch by using the contact form below.

Contact

News

How to Discharge a Restraining Order

A great many people are subject to restraining orders made under the Protection From Harassment Act 1997.  The orders are designed to protect people from harassment and are commonly made in so-called ‘domestic violence’ cases.  Advice is not given by the court at the time about how to discharge a restraining order.

Of course, life moves on.  It is quite common for old relationships to discharge a restraining orderbecome re-established. If this should happen before a successful application is made to discharge a restraining order, the person subject to the order is at serious risk of committing a criminal offence.  The offence of breaching a restraining order carries a maximum sentence of 5 years imprisonment.

In other cases a restraining order may have, for example, geographic restrictions that are no longer appropriate.

Whatever the reason, there is a procedure to vary or discharge the order.

Is legal aid available to discharge a restraining order?

Legal aid may be available to a person subject to the order, dependant on a full assessment.

We also offer a competitively priced private client service.

Who makes the application to discharge the order?

The Act says that:

‘The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.’

This is important as it allows the person who is protected by the order to support or even initiate, any application to vary or discharge.

What are the criteria for discharge of the order?

There aren’t any statutory criteria for the court to apply, but case law sets out the following approach:

‘The only question on an application or further application, under section 5(4) of the Protection from Harassment Act 1997, to discharge [or vary] a restraining order made under that section, was whether something had changed so that the continuance of the order was neither necessary nor appropriate.’

It follows therefore that there really must be a compelling case to discharge a restraining orderpersuade the court to change its mind based on a change in circumstances.

Where the person protected by the order supports the discharge, the application is much stronger.  In this context the Court of Appeal has observed:

‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with.  Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.  It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself.  The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make. Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained.  She told them unambiguously that she wants this order revoked.’

How we can assist with your application

Firstly we will take your instructions and advise you as to the chances of a successful variation of discharge of your restraining order.

discharge of a restraining orderIf the application is to be made, we will meticulously prepare an evidence bundle and submissions for the court and present these on your behalf.

If we represented you in the original hearing then we will already have the information relating to your case.  If another firm of solicitors dealt with your case then we will be able to contact them to seek the papers relating to that case.

Please contact the office most convenient to you.  Alternatively you can use the contact form below.

Contact

 

News

Unexplained Wealth Orders in force from January 2018

On 31st January 2018, regulations bring into force sections of The Criminal Finances Act 2017.  These deal with unexplained wealth orders as well as various other related provisions.  They are intended to be used with existing civil recovery powers.

The purpose of the unexplained wealth orders is to allow for certain unexplained wealth orderspeople who obtain property, which would ordinarily be beyond their obvious means, to be required to prove how they lawfully acquired it. This is, in effect, a reverse of the usual burden of proof where the prosecution must make a court sure of wrong doing.

Law enforcement agencies often have reasonable grounds to suspect that identified assets of such persons are the proceeds of serious crime. However, they are often unable to freeze or recover the assets under provisions in the Proceeds of Crime Act due to an inability to obtain evidence (often due to the inability to rely on full cooperation from other jurisdictions to obtain evidence).

Who can apply for unexplained wealth orders?

The authorities which may apply for such an order are:

  • The National Crime Agency
  • HM Revenue and Customs
  • The Financial Conduct Authority
  • The Director of the Serious Fraud Office
  • The Director of Public Prosecutions

What happens if you are subject to an order?

If you are subjected to an order of this kind, you must provide a statement which does the following:

  • Sets out the nature and extent of your interest in the property
  • Explains how you obtained the property, particularly how any costs involved were met
  • Provides details of any settlement if the property is held by trustees
  • Sets out any other information about the property specified in the order

In addition to a statement, it may be necessary to supply documents connected to the property as required by the order.

What does the High Court need to be satisfied of?

Before it can make an order, the High Court must be satisfied that the following criteria are met:

  • There is reasonable cause to believe that the person in question holds the property and that it is worth over £50 000;
  • There are reasonable grounds for suspecting that this person’s known income (from lawful sources) would not be enough to obtain the property; and,
  • The person in question is a politically exposed person (see definition below) or there are reasonable grounds for suspecting that they are or have been involved in a serious crime or someone connected to this person is or has been so involved.

unexplained wealth ordersA politically exposed person (PEP) is someone who is or has been entrusted with prominent public functions by an international organisation, a State other than the UK or another EEA State, a family member of such a person, a close associate or someone connected to them in another way.

Are any criminal offences created?

It is a criminal offence to knowingly or recklessly make a statement that is false or misleading in response to an unexplained wealth order. Doing so can result in two years’ imprisonment and/or a fine. This offence can be tried in either the Magistrates’ Court or the Crown Court.

What if I fail to provide the information?

unexplained wealth ordersFailing to provide the information, in full or part, may prejudice any civil forfeiture proceedings.

In some cases, an unexplained wealth order will be accompanied by an interim freezing order. This prohibits the respondent to the order and any other person with an interest in the property from in any way dealing with the property.

Property held outside this country

unexplained wealth ordersWhere the property is thought to be in a country outside the UK, the Secretary of State may forward a request for assistance to the government of the receiving county. This can be a request to prevent anyone in that country from dealing with the relevant property and provide assistance in managing it as required.

Contact VHS Fletchers for specialist legal advice

To discuss unexplained wealth orders, or any other matter, please contact confiscation law solicitor Julia Haywood on 0115 9599550 at our  Nottingham office.  Alternatively use the contact form below for prompt expert advice.

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Good character evidence and trial preparation

In criminal law, we talk a lot about ‘character’.  This is, however, mainly in the context of ‘bad character’ rather than good character.  It is often the case that the prosecution will try to put previous convictions before a jury to persuade them of the defendant’s guilt. After all, the prosecution will say, if he’s done it before, he is more likely to have committed this crime too.

Of course, not all defendant’s facing criminal trial will have previous convictions.  In those circumstances the issue of ‘good character’ is likely to be important.

good character direction

This will, of course, involve a reversal of the prosecution argument.  In cases where a person is of good character it will be said, therefore, that they are less likely to have committed the crime charged.

In fact the situation is much more complicated than that.  As a result we believe it is an aspect of case preparation that can often be overlooked.  This will be to the detriment of the person of good character standing trial.

What is the purpose of establishing good character?

For centuries, it has been accepted that evidence of the accused’s good character is admissible in criminal trials.  In more recent years, the courts have accepted that evidence of good character may be admissible:

  • to bolster the accused’s credibility; and,
  • as relevant to the likelihood of guilt.

How is good character established?

In most cases, good character is simply a matter of fact.  If a person has no previous convictions they will by definition be of good character.

But even then, a person may be deprived, at least in part, of their good character status depending on the nature of any evidence they have given.

Similarly, although a defendant may not start off with good character they may be able nonetheless to obtain a good character direction. This is often referred to as ‘qualified or effective good character’. A common scenario is where any convictions are either so old or so irrelevant to the matter before the court, that it would be unjust to take them into account.

Should character witnesses be called?

An essential part of establishing good character will be to consider good character evidencecarefully whether character witnesses should be called on your behalf. These will be people who know a defendant well and who will speak positively about them.

In choosing character witnesses, it is preferable to try and find people who will be highly credible themselves in the eyes of the court or jury.  They ought to be people who would not be willing to lie about a person’s character and qualities simply due to allegiance to that person.

Do I have to do anything?

It is critical that good character or qualified good character is not overlooked during case preparation. It is for the defence to formally establish good character and ensure that the issue is properly before the court for consideration.

Good character and appeals

If defence advocates do not take a point on the character directions at trial and/or they agree with the judge’s proposed directions which are then given, these are good indications that nothing was amiss. good character court of appealThis means that attempting to cure any defect on appeal is unlikely to meet with success.

The Court of Appeal has held:

“…as a matter of good practice, if not a rule, defendants should put the court on notice as early as possible that character and character directions are an issue that may need to be resolved. The judge can then decide whether a good character direction would be given and if so the precise terms. This discussion should take place before the evidence is adduced. This has advantages for the court and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule. The judge should then ensure that the directions given accord precisely with their ruling.”

What is the content of a ‘good character’ direction?

The actual direction to the court or jury depends on the exact circumstances of the case, but this is a typical full direction:

‘You have heard that the defendant is a man in his middle years with no previous convictions. Good character is not a defence to the charges but it is relevant to your consideration of the case in two ways. First, the defendant has given evidence. His good character is a positive feature of the defendant which you should take into account when considering whether you accept what he told you. Secondly, the fact that the defendant has not offended in the past may make it less likely that he acted as is now alleged against him.

It has been submitted on behalf of the defendant that for the first time in his life he has been accused of a crime of dishonestly. He is not the sort of man who would be likely to cast his good character aside in this way. That is a matter to which you should pay particular attention.

However, what weight should be given to the defendant’s good character and the extent to which it assists on the facts of this particular case are for you to decide. In making that assessment, you may take account of everything you have heard about him.’

In the magistrates’ court, the defence advocate should ensure that the legal adviser provide the magistrates’ with the correct advice on this direction.

How we can assist as criminal trial specialists

We believe in proactive defence work.  This means that we do not merely respond to the prosecution case.  At the same time we are taking all of the positive steps possible to build a strong case for your defence.

An example of a Magistrates’ court trial where good character was important can be found here.

Considerations about character, both good and bad, will be just one aspect of this case preparation, although it may be a significant one.

Any application for legal aid is likely to be assisted where a conviction following trial will deprive a defendant of their good character.

good character direction

Please contact your nearest office to make an appointment to speak with one of our expert criminal lawyers.  The contact details can be found here.

Alternatively you can use the contact form below.

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