Tag Archives: solicitor

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Interview under caution – can I use a prepared statement?

For many people the thought of being interviewed by a police officer will never cross their mind. Their law abiding lives mean that they will only rarely have any interaction with the Police.  On occasions, however,  allegations can be made which mean the police will have no alternative but to hold an interview under caution.

The importance of an interview under caution

Such an interview under caution may happen after arrest.  More often in recent times there may be what is called a voluntary interview.  The importance of either type of interview should not be underestimated.  The answers given in an interview under caution will carry the same weight in any court proceedings.  Any responses will also help decide whether a prosecution should be brought in the first place.  As a result, what is said in interview can have life changing effects as a case progresses.

Our expert criminal defence lawyers across all of our offices give daily advice to suspects interviewed by the police.  People choose not to have a solicitor in police interview for any number of reasons.  They may think that they have nothing to hide, or that there is no evidence that they are responsible for any wrong doing.

Free and independent legal advice

Whatever your personal views on the case we would recommend that you always contact one of our solicitors or accredited police station representatives as soon as you know the police want to speak to you.  This might be in advance or as you are booked in at the police station.

This advice will always be free of charge to you as we have a contract permitting us to give advice and representation under the legal aid scheme.  The service remains free whether when our office is open or out of hours.

Our advice is always independent of the police and we may help you identify all of the relevant legal issues that will inform your decision whether or not to answer the police questions.

A police interview years after the event

Chesterfield Police Station Representative Rob Lowe

Recently Chesterfield police station representative Rob Lowe was asked to represent a female suspect.  She had been interviewed in 2013 about allegations of child neglect when she was a foster carer. The case was closed with no action but the complainant wished to resurrect the complaint.  The police chose to put additional evidence to our client four years after the original police interview.

As Rob had attended with his client for interview he was able to receive full details from the police bout the new evidence that they had.  Without the benefit of a legal adviser in interview the police are unlikely to give you a similar level of information before the interview.

It became clear that although the police wished to ask some questions about some new, but minor, issues that had arisen they also wanted to ask some of the same questions that they had asked four years earlier.

As his client had chosen to have legal advice, she had the opportunity of speaking with Rob in private before the interview took place.  He had the opportunity of providing her with detailed advice about her options.

Bearing in mind she had already answered the majority of the questions, Rob was reluctant for the police to have a further opportunity to seek answers that may be inconsistent bearing in mind the passage of time.  Any differences in her account could weigh against her in any charging decision even though they would be perfectly understandable.

Submitting a prepared statement

Rob was, however, keen for his client to address the fresh issues that had arisen.  As a result, he drafted a statement that set out his client’s position in relation to these matters.  This statement was read out at the start of the interview.  After that, his client exercised her legal right to silence and refused to answer further questions put.

You will appreciate that a person without the benefit of legal representation may be unlikely to adopt such a course of action.  They are less likely to be confident in refusing to answer the questions the police put in interview.

Our client was refused charge

Following interview the case was subject to a further review and our client was told that no further action was to be taken.  She had been refused charge.  No doubt this was in part due to the comprehensive denials that she had put forward four years ago, but also in part to the position that she adopted in relation to the later interview.

Contact a legal aid specialist in police station representation.

Rob can be contacted at our Chesterfield office on 01246 283000.  This number will be answered 24 hours a day, 7 days a week, every day of the year.

You can read some more thoughts on why you ought to have legal advice in police interview here.

Alternatively, if might be that one of our other offices is more convenient.  You can find the details here.

interview under caution
VHS Fletchers crime and regulatory solicitors offices
News

Application to exclude evidence before Nottingham Youth Court

Nottingham criminal defence solicitor Nick Walsh recently represented at a Nottingham youth court trial.  The identification evidence was disputed and Nick made an application to exclude evidence from a police officer.

Nick’s client was fourteen year old charged with theft of a motorbike from a domestic garage.  A police officer purported to identify Nick’s client from  The evidence was that he had been identified from CCTV footage by a police officer who our client very well.

Identification evidence from CCTV footage

An identification in such circumstances is governed by the Codes of Practice set out under Police and Criminal Evidence Act 1984.  As a result, following the not guilty plea being entered, Nick wrote to the Crown Prosecution Service asking that they disclose the contemporaneous notes of the CCTV viewing and the additional records required by Code D of the Codes of Practice.

The prosecution did not supply any of the documentation that had been requested.  The officer did, however, give a further statement dealing with the circumstances of the identification.

Expert cross examination of a police witness

At trial Nick had the opportunity of asking the officer questions about the circumstances of the identification.  His careful cross examination led the  officer to concede that he had not kept any records or notes of his viewing of the CCTV.  Additionally he could not be sure how many times he had viewed the footage.  More damagingly he confirmed that he had been given that task of viewing the CCTV by his sergeant and had been told that Nick’s client was already suspected of the crime.

The officer stated that he had based his identification on the way the suspect walked.  Having been made to view the footage again in court he had to accept that there was nothing distinguishing about the walk.

He also accepted that he had made his mind up that it was Nick’s client before he got a look at the offenders face.  Finally, he had to accept that the quality of the CCTV footage was poor.

Application to exclude evidence obtained unfairly

At the close of the prosecution case Nick applied to the Youth Court Magistrates’ to exclude the identification evidence.  This application was made under section 78 Police and Criminal Evidence Act 1984.  This is on the basis of the breaches of the Codes of Practice.  In this case, where the identification evidence was the only evidence in the case, it would be unfair to admit it.

The Magistrates agreed and the evidence was excluded.  As a result, the prosecution had no option but to offer no further evidence and Nick’s client was found not guilty.

Client had the benefit of free criminal legal aid

Owing to our client’s age Nick’s representation of him was free of charge to both him and his parents under the criminal legal aid scheme

Contact an expert criminal defence lawyer

This case illustrates the importance of knowing the law that governs identification evidence.  It also shows that you need a criminal solicitor on your side who can make sure that a police office is made to answer the difficult questions.  This might open the door to an application to exclude evidence.

application to exclude evidence nottingham solicitor
VHS Fletchers offices across the East Midlands

Nick can be contacted on 0115 9599550.  Alternatively contact one of our other criminal defence solicitors at our offices across the East Midlands.  A contact form is below too.

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Remorse, regret and credit for your guilty plea

In matters being investigated by the police or before the criminal courts it is sometimes the case that a simple act of contrition, genuinely felt and communicated, can alter a case outcome significantly.

For example, a timely admission and expression of sorrow can make the difference between a formal resolution, such as caution or charge or persuade the police to consider an out of court community resolution.

Credit for your guilty plea will attract the automatic discount on sentence, but it is a demonstration of genuine regret and remorse that may make all the difference.

Remorse might open the door to restorative justice

Restorative justice is now a popular out of court disposal.  Such a resolution is preferable to almost all other outcomes when guilt is not in doubt. Research shows that the process can benefit both the victim and the offender.

Other out of court disposals such as driver awareness courses can also have an impact on an offender.  This will particularly be the case where a defendant is willing to address their behaviour.  Few participants will leave the course undisturbed by the graphic images of a child hit by a speeding vehicle.

In court, it can sway a bench in some cases to impose a more lenient punishment, so because of this we always work with clients to ensure mitigation is advanced adequately at all stages.

Of course, sorry in itself might not mean much, what are you sorry for?  Is it for being caught?  Or is it because you find yourself before a court?  Could it be more than that and therefore does it amount to genuine remorse?

Genuine remorse and sentencing guidelines

This is an important question in sentencing terms because ‘genuine remorse’ is a mitigating factor in almost all sentencing guidelines and can make a substantial difference to the outcome.

The Oxford English Dictionary defines remorse as being:

‘A feeling of compunction, or of deep regret and repentance for a sin or wrong committed.’

A court will, however, be looking only for genuine remorse, and it is far from being a scientific exercise.

What does the Sentencing Council have to say?

The Sentencing Council commented on this as follows:

“This factor appears in all Sentencing Council guidelines and is one that sentencers are adept at assessing. Sentencers sitting in court on a daily basis are alive to the ease with which ‘sorry’ can be said but not meant. Evidence obtained during the course of interviews with judges (during the consultation process) confirmed the way in which judges carry out this assessment; often the judges used phrases in conversation with us such as ‘genuinely remorseful’, ‘genuine remorse’ and ‘true remorse’. This confirms the Council’s view that the consideration of remorse is nuanced, and that all the circumstances of the case will be considered by the sentencing in deciding whether any expressed remorse is in fact genuine.”

Not just credit for your guilty plea

In a recent lecture, a High Court Judge offered up these examples to illustrate genuine remorse:

• Deliberate withdrawal from an on-going criminal enterprise.

• Removing oneself from criminal associates or the sources of temptation.

• Behaviour immediately after the offence such as obtaining medical aid.

• Voluntary surrender and confession to the police.

• Efforts to reform by way of, e.g. drug-rehabilitation or alcohol withdrawal programmes.

• Return to education.

• Assistance to the authorities in combating crime.

• Voluntary restitution, payment of compensation without order from the court or restoring damaged property.

Less objective examples (but commonly seen) include:

• Expressions of remorse in police interviews after arrest.

• The impression of genuine remorse given to a probation officer, psychiatrist or psychologist when being interviewed for the purpose of preparing a report for the court before sentencing.

• Letters of apology written by offenders to victims or the court

How can we assist? Contact a criminal defence lawyer now.

It is our job when representing clients to ensure that the best case is put forward.  You will want this to go beyond the usual mitigation offered by the credit for your guilty plea.  This should involve other aspects of your character that might shine a light on your true self.

People make mistakes, sometimes serious ones, but rarely does that alone define the real person.  We believe that carefully presented mitigation makes a real difference to the outcome of criminal cases.

We are experienced in approaching family, friends, employers and other community figures for reference letters on your behalf.  The information that we request will make sure we build on the credit for your guilty plea because of this experience.

credit for your guilty plea
Our offices across the East Midlands

Please contact your nearest office here or alternatively use the contact form below.

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News

Minimum sentence for disguised firearm avoided

Nottingham solicitor advocate Jon Hullis recently represented a client who was facing a prison sentence for a minimum of 5 years for possession of a disguised firearm.

It was alleged that he was in possession of a stun gun or taser disguised as a torch.  In the event he ended up with a lesser charge and a much better result following his guilty plea.

In Possession of a Stun Gun

Jon’s client was an HGV driver employed by a Polish haulage company.  He made regular journeys through the channel tunnel.

Whilst he was at a service station on the M1  his vehicle was subject to a routine check by the police and DVSA officers. Although his tachograph and other driver’s records were in order the police found an item in his cab.  This had the appearance of a torch but the police soon realised that as well as being a torch the item was a stun gun capable of delivering a shock of 8000 volts.

Free and independent legal advice

As a result our client was arrested.  Although he chose to seek free and independent legal advice at the police station he asked for the duty solicitor rather than VHS Fletchers.  As a result a different firm represented him in the police station.

In interview he answered questions and told the police that he had bought the item from a market stall in Poland for 20 zloty or approximately four pounds.  Our client admitted knowing that it was both a torch and a stun gun. He explained that he had it with him due to the threat he faced from people trying to hide in his lorry when he passed through Calais.

As he was  regularly frightened of being attacked so hoped that the stun gun would keep attackers away from him if need be.  It was kept inside his cab.  He had no intention of using it in this country as by the time he entered this country the danger would have passed.  He stated that as items such as this were so freely available in his home country he did not realise that it was illegal to have the item in the United Kingdom.

Disguised firearm charge carried a minimum five year sentence

Our client was charged with being in possession of a firearm disguised as another object. At the initial hearing in the Magistrates Court his case had to be sent to the Crown Court.  This was because the charge as it stood could only be dealt with at the Crown Court.

He had continued with the same firm of solicitors who had represented him in the police station.  When the case had been sent to the Crown Court that firm had told the court that the defendant would be pleading guilty to the charge as it was currently drafted.

As a result, he ran a very real risk of receiving a sentence of five years.  That sentence could only be avoided in exceptional circumstances.  The admissions made in interview that he knew the nature of the device and that he had it for protection were unhelpful in mitigating any such sentence.

Transfer of representation

Our client was not happy with advice that he had received in both the police station and then at the Magistrates’ Court.  The apparent inevitability of a guilty plea had been accepted and this fact had been communicated to the court.  It appeared that no consideration had been given to alternative and lesser charges.

As a result, the client made contact with us following a recommendation from a prominent member of the local Polish community

The Law on Stun Guns

Under Section 5 Firearms Act 1968 stun guns are classified as firearms.  They are always illegal to possess.  This is remains true even in a private place such as your home.  Possession of a stun gun alone can be punished by a prison sentence of up to ten years.

The situation for any client is more serious where a stun gun is disguised as another object.  These are often mobile phones or torches.  In those cases the court must impose a sentence of at least five years in prison.  This remains the case even where someone has no previous convictions and pleads guilty at the earliest opportunity.  The usual rules as to a reduction in sentence for credit for a guilty plea does not apply.

A judge will only be able to impose a lesser sentence where there are “exceptional circumstances”.  The very wording indicates that such cases will be very rare.

In some cases it will take a close inspection to reveal that an item is in reality a stun gun.  In the case of this particular client the item had “50,000 KV” clearly printed on the body of the item.  The metal electrodes were also visible.  Although the item was also a working torch, there was nothing specifically done to conceal the fact that it was a stun gun.

Representations to the Prosecutor

After carefully considering the law and the circumstances of this case, Jon spoke with the prosecutor.  He made representations that this was not a stun gun disguised as a torch.  It was actually a stun gun that also had a torch function. Jon’s research had shown that this was argument was supported by reference to it being widely for sale across Europe as a stun gun.  It was used by both the police and military as a stun gun with a torch function so not a disguised firearm.

Jon was able to persuade the prosecutor of his view of the item.  As a result the prosecutor accepted a guilty plea to an offence possession of a stun gun.  The fact that it was no longer a disguised firearm meant that the judge would have greater flexibility on sentence.

Sentence

Understandably our client was desperate to be able to return to Poland.  He lived there with his wife who was pregnant with their first child. Jon mitigated on his behalf with the aim of securing the most lenient sentence possible to allow him to return home.

The Judge agreed that this was an unusual case because it was plain that our client did not realise it was an offence to possess this item.  He had no intention of using it in this country. He said this case should act as a warning to other drivers who may consider carrying these items.

In the event, however, our client received a two year conditional discharge. This is an order where no punishment is imposed. Providing our client commits no further offences during the period of the conditional discharge then this will be the end of the matter.  The conviction will be spent.

Our client was obviously immensely relieved with this outcome and was incredibly grateful for the advice and representation he received from Jon.  This was a particularly pleasing outcome bearing in mind where the likely sentence for the disguised firearm offence prior to VHS Fletchers becoming instructed solicitors.

Funding

Unfortunately, legal aid would not have been transferred in this case,  As a result, our client felt it necessary to fund our representation privately.  Where you have the benefit of legal aid it will usually be best to remain with that provider.  In this case, however, our client clearly felt that it was not.

Contact a criminal defence expert to prepare your case

If you require advice from an experienced criminal solicitor in Nottingham about a disguised firearm then please contact Jon on 0115 9599550.  Alternatively, we have similarly experienced solicitors across our offices in the east midlands.

Contact details can be found here.

Alternatively you can use the contact form below.

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New regime for licence conditions from November 2017

Released, But Not Free

For many offenders a prison sentence is a grim reality.  It is a punishment that must be served.  It will impact not only on the single individual but in many cases on their family as well.

licence conditions legal advice
Prison law specialist Irene Tolley

As a result, when the day of release comes it will be a significant moment.  The door on the punishment has closed.  It is an opportunity to draw a line under the past and move on.  For many offenders, however, the release from custody comes with conditions.  These are in the guise of license conditions that must be abided by.  There is the threat of a return to prison if not obeyed in full.

The government has announced changes to the release license regime that come into effect on 13th November 2017.  Prison law specialist Irene Tolley outlines the changes below.

New Licence Conditions Category

In the future, Release licenses will be able to restrict ‘specified conduct or specified acts’.

The government intends that conditions are to be put in place for particular offenders that will:

• Prohibit gambling
• prevent the drinking of alcohol
• ban the use of some social media websites

In planning for an offender’s release, a supervising officer will create a release plan.  This will include the consideration of whether additional licence conditions are appropriate. These conditions are then submitted to the Governor of the releasing prison.  They will review their application on behalf of the Secretary of State. Only once the Governor confirms the conditions do they become legally enforceable.

Why Prohibit Alcohol Consumption?

licence conditions legal adviceThis is what the government has to say about this:

“The consumption of alcohol is a known factor in recidivism for some offenders. In 2004, the Prison Reform Trust published a paper which estimated that 63% of male offenders and 39% of female offenders within the England and Wales prison estate admitted to hazardous drinking before being imprisoned. At the same time, the estimated cost of alcohol-related crime and public disorder was £7.3 billion per year. A condition to require an offender not to consume alcohol would set an expectation for an offender on licence and compliance with that condition would be subject to recall.”

Can I challenge my Licence Conditions?

To be lawful, any licence condition, whether standard or additional, has to be necessary and proportionate to manage the offender’s risk of reoffending and risk of harm. It is always open to an offender to challenge the imposition of a licence condition by way of an application for judicial review.  This would be where the offender considers that the condition is not necessary or proportionate to manage the risks of his case.

How We Can Help

licence conditions legal advice solicitor
Derby crime and prison law solicitor Rosamunde Benn

We can assist with any sentencing related query.  Please contact either Irene at our Nottingham office on 0115 9599550 or Derby crime and prison law solicitor Rosamunde Benn at Derby on 01332 546818.

Alternatively you can use the contact form below.

Contact - Prison Law

 

 

 

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Successful defence of taxi driver facing sexual assault allegation

Nottingham solicitor advocate Andrew Wesley and Senior Crown Court litigator Lisa Sawyer were instructed in the defence of a taxi driver facing trial for a sexual assault before Nottingham Crown Court.

 

Careful preparation and dialogue with the prosecutor resolved the case in our client’s behaviour.

An allegation of sexual assault

Andrew’s client was in a serious position.  Although the taxi driver was of good character, the CCTV in his cab was not working on the night of the incident.  Further, there was his DNA on the chest of the complainant in the case.

The allegation had been made within minutes of the incident taking place.  The complainant had phoned 999.  She was clearly distressed during the call.  She had repeated the allegation when officers came to her address, and made three separate written statements in support of the case.

The complainant maintained that during a taxi journey our client had continuously quizzed her about her tattoos and piercings.  At the end of the journey he had pulled up her top and underwear and sexually assaulted her.  She attended court for the trial fully willing to give evidence.

Free and independent police station advice

Our client had made the sensible choice of seeking legal advice prior to his police interview.  Crime solicitor Jameel Malik was present in both sets of police interview to provide advice and assistance.

Jameel advised that his client answer the questions put to him by the police.  He did so confirming:

  • there had been no inappropriate questions
  • the complainant had pulled up her own top
  • she was drunk
  • it was she who had then pulled him onto her chest
  • she had given him her  real mobile phone number

He was charged with the offence at the conclusion of the investigation.  The case was allocated to the Crown Court for trial.

An investigation of the evidence

Our client would gain a benefit in proceedings if there was evidence in support of his case.  At first glance the evidence against him would appear very strong.

As the case developed, however, and as additional material was served a very different picture began to emerge.

The DNA evidence had been presented by the police as being decisive in our client’s case.  Further examination showed that, hidden in the detail, was confirmation that the evidence could also be explained by the account that our client had given in interview.

In interview, he had explained the nature of the conversation he had during the journey.  It was innocuous, but the detail he gave meant that the answers could only have come from the complainant.  This began to undermine the account she had given.

Helpful bodycam footage

Bodycam footage showed what the complainant was wearing.  It showed that tattoos on her legs would not have been obvious.  This undermined her suggestion that our client had immediately seen these tattoos and made comment.  Further, the footage showed that he would not have been able to see tattoos on her chest.  This was important as she had said that he had mentioned them and asked to see them.

Listening to the entirety of the bodycam footage revealed that the complainant agreed that she had searched her bag for money as described by our client.  Although it was hard to hear, she also told police that it was she who had lifted her top to show her tattoo.  This was exactly what our client had said in interview.

Key evidence stored in our client’s mobile phone

An insistence on an inspection of our client’s mobile phone also showed that he was telling the truth about how he came to have the complainant’s phone number.  There was no evidence in the call list that she had given him a false number that he had tried to ring.  Instead, the log showed that she had called him and he had saved her number in his phone using her name.  Again, he had said this in his police interview.

This information was only revealed through a detailed examination of the unused material in the case as well as the exhibits.  Transcripts of the 999 calls and bodycam footage were prepared to go before the jury.

No evidence offered so a not guilty verdict

Ultimately, when the problems and inconsistencies with the prosecution witness were set out to prosecuting counsel on the day of trial there was no real alternative but for the Crown to offer no evidence.  There was no longer a realistic prospect of conviction once there was full consideration of all of the available material.

Crown Court legal aid to fund defence of taxi driver

legal aid funded defence of a taxi driverOur contract with the government permits us to provide representation at the Magistrates’ and Crown Courts under the criminal legal aid scheme.  The description of how we dealt with the preparation of this case no doubt shows you that even when, such as in this case, a client has the benefit of legal aid we still provide our usual high quality service.

Although those there will be a few cases where a client in not financially eligible for Crown Court legal aid, these will be few and far between.

Information about how Crown Court legal aid works can be found here.

Contact a lawyer expert in Crown Court defence

We offer Crown Court representation from each of our offices in the East Midlands so please choose the office most convenient to you.

Some information about how we would defend a case of sexual assault can be found here.

crown court defence sexual assault solicitor

All of our office phone numbers are answered 24 hours a day, 7 days a week to provide emergency advice and representation to those detained by the police.  Please do not hesitate to call.

We can also be contacted using the form below.

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Drug Driving Offences – what you should know

What are the offences?

There are two drug driving offences:

  • Driving whilst unfit through drugs
  • Driving whilst over the limit for certain drugs

What is driving whilst unfit through drugs?

To be guilty of driving whilst unfit, the prosecution must prove:

  • You were driving (or attempting to drive or in charge of) a vehicle on a road or public place; and
  • You were unfit to drive; and
  • This was due to any drug (medication or illegal)

What is driving over the drug limit?

Since 2015, it has been an offence to drive (or attempt to drive or be in charge of a vehicle) on a road or public place with certain drugs in your blood above fixed limits. Limits have been set for 17 drugs, covering legal and illegal drugs.

Illegal drugs and the drug driving limit

The limits for illegal drugs are set very low, so that even trace amounts can lead to a prosecution. The limits do not provide any indication that the driver’s behaviour or ability to drive are affected by the drug. As these drugs are illegal, effectively a zero tolerance approach has been adopted.

drug driving offences illegal drugs
Drug driving offences – illegal drugs

Legal drugs and the drug driving limit

These are prescription or over-the-counter medications. Limits are set at levels where there is an increased risk of road traffic collision and are higher than would be expected in someone who has taken a normal dose as medicine.

drug driving offences legal drugs
Drug driving offences – legal drugs

 

What about prescription drugs?

The limits set for legal, medication drugs are lower than would be expected in someone taking a normal dosage of the drug.

For example, people taking Lorazepam as a prescribed medicine would normally have a blood concentration of 10-20 µg per litre of blood. The legal limit is set at 100 µg/L.

Even if your blood sample is over the limit for a drug, providing you are not impaired by it, there is a defence if the drug has been taken for medical purposes. This applies if:

• the drug has been prescribed or supplied for medical purposes; and
• it was taken in accordance with the instructions given; and
• the driver was lawfully in possession of it.

The defence cannot be used where the driver did not follow the instructions about the amount of time that should elapse between taking the drug and driving.

What are the penalties for drug driving offences?

If convicted of a drug driving offence, the court must impose a disqualification from driving for at least 12 months. This can only be reduced or avoided if the court finds that there are “Special Reasons” relating to the offence. The court cannot impose a ban for less than 12 months based on the hardship that would be suffered as a result of it. In addition, the court can impose the following:

• Prison for up to 6 months
• Suspended Prison Sentence
• Community Order
• Unlimited fine

What should I do if I am accused of drug driving?

drug driving offences legal advice
Nottingham road traffic law solicitor Graham Heathcote

These are technical offences and involve complicated procedures for the police to follow. Very often, there are mistakes made which mean there is a lack of evidence. Defence experts may be able to challenge the prosecution evidence.

If you would like advice about a drug driving allegation, contact one of the solicitors at your local office or Nottingham road traffic solicitor Graham Heathcote on 0115 9599550 or use the form below.

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Prosecution Res Gestae Argument fails at Derby Magistrates’ Court

Derby crime solicitor John Young recently represented  a client alleged to have assaulted his partner.  Success hinged on a prosecution res gestae argument.

The prosecution allegation

The complainant alleged that an incident had taken place outside her home address early in the morning.  Our client’s vehicle was said to have been parked outside at the time.

It was alleged that our client had pushed the complainant into the road causing her to fall over.  She alleged that this resulted in two broken bones in her foot. Our client was also alleged to have threatened to kill her whilst threatening her with a screwdriver.  He was said to have snatched her mobile phone from her and then left the scene.

Denied allegations

John’s client denied the allegations. He accepted that he had been at the scene but maintained that the complainant was the aggressor. Our client then described how she had tried to hit him but had fallen over in the process, landing in the road. He denied that he had made any physical contact with her.

Our client provided an explanation explaining why he was in possession of the mobile phone and the screwdriver.

In the event the victim declined to provide a forma statement to the police.  She did not support the prosecution.  The allegation as set out above was set out in the complainant’s first contact with the police.

Prosecution depended on res gestae argument

Despite the lack of a formal complaint,  our client was charged.  The prosecution case was to be based on a 999 call made twenty minutes after the incident was said to have taken place.  CCTV footage showed the delay in making the call.

Bodycam footage from police officers captured an initial complaint but this was nearly fifty minutes after the incident. There was a statement from a delivery driver who saw the complainant falling the road.  He  could not say how or why she fell.

As no-one saw the incident aside from the complainant and the defendant, the prosecution had to rely on hearsay evidence to try and secure a conviction.  This evidence would come from the 999 call and the bodycam footage.  Surprisingly, the prosecution did not make an application to admit this hearsay evidence prior to the trial date.

At the beginning of the trial the prosecution made clear the basis upon which they were presenting their case and made the hearsay application.  The prosecution conceded that if the application was unsuccessful then the prosecution could not proceed.

Problems with the hearsay evidence

There were several problems with the res gestae argument:

  • the bodycam footage showed that by the time the police arrived the victim was not “so emotionally overpowered” that the possibility of concoction or distortion could be disregarded
  • During the 999 call the complainant initially stated her leg was broken.  after questioning the operator establish that the victim only believed this because her leg was ‘painful’
  • It was clear from the bodycam footage that the leg was not broken.
  • During the 999 call the complainant alleged that she had taken the screwdriver from the client in order to stop him stabbing her with it.  Police evidence showed that the screwdriver had been recovered from the client’s vehicle when he was arrested
  • The timing of the incident showed that the complainant’s suggestion that this had been a chance encounter could not be true.
  • The CCTV footage showed that the complainant was not telling the truth when she said she had been assisted by a stranger while she lay in the road.
  • The footage also showed that, despite her allegation, she had not been swung around and then pushed by our client.
  • There were further significant differences between the accounts given in the 999 call on captured on bodycam footage.

A detailed analysis of the evidence by the defence

John’s detailed analysis of the evidence meant that he was able to use all of the above features of the case to argue against the admission of this purported res gestae evidence.  This included a thorough understanding of the timeline in the case and all of the inconsistencies between the different parts of the evidence.

He argued that it would be wrong to conclude that the complainant was so emotionally overpowered that there could not have been concoction or distortion.

The Magistrates agreed with John’s submissions.  They refused to allow the Crown’s application to admit any of this evidence under section 118(1)(a) Criminal Justice Act 2003 and the relevant case law.

Once the Crown’s res gestae argument had been refused the Prosecution accepted that they had no further evidence to place before the Court.  No evidence was offered and the charge was dismissed.

Some more information about Res Gestae and hearsay evidence can be found here.

Defendant’s Costs Order Made

Our client was not financially eligible for Legal Aid.  He had funded the matter privately.  John successfully applied for a Defendant’s Costs Order which permitted recovery of a proportion of the private costs paid.

Contact Derby Crime Solicitor John Young

crime solicitor res gestae argument
Derby crime solicitor John Young

If you face allegations before the Magistrates’ court you will need an experienced solicitor with an eye to detail to ensure that your best case is placed before the court.

You will also want to instruct a solicitor who understands all of the relevant law and is fully prepared to make the arguments that you need to win your case.  This will particularly be the case if there is to be a difficult res gestae argument.

Please telephone John Young for an appointment on 01332 546818 or use the contact form below.

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Successful Crown Court Appeal of a Magistrates’ Court Conviction

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Senior Crown Court litigator Sarah Lees-Collier

Senior Crown Court litigator Sara Lees-Collier and solicitor-advocate Jon Hullis were recently instructed in a Crown Court appeal against conviction by the Magistrates’ Court.

Our client had been convicted after trial before the Magistrates of resisting a police officer in the execution of their duty.  Although she had only received a fine, this in combination with the prosecution costs meant that she had a substantial bill to pay at the conclusion of her case.

She was aggrieved with the outcome of the Magistrates’ Court trial.  She maintained that she was neither violent towards officers or attempted to resist arrest.  At the conclusion of the incident she had a broken arm.

The prosecution case

Police officers had attended an address to locate an offender.  Upon finding our client they discovered that she was subject to a warrant from the Magistrates’ Court for her immediate arrest in relation to road traffic offences.  Our client had already made arrangements with another police officer to surrender to that warrant.

When the police entered the property she was asleep in bed.  She had been drinking, and accepted that she was tired an annoyed by what was an unnecessary arrest bearing in mind her earlier conversation with the police.

The police maintained that she became abusive and then aggressive when the police attempted to arrest her.   It was alleged that she attempted to bite a female officer and then tried to resist arrest.  The police maintained that during their struggle to arrest her she had fallen off the bed and broken her arm.

Fault was said to lie with our client rather than the officers.

The reason for the Crown Court appeal

Our client’s version of events was very different.  She maintained that she had been handcuffed to one wrist while still on the bed.  A male officer had then taken old of the handcuffs while she was on t the bed.  He twisted her arm behind her back and pulled her off the bed with force.

As a result she fell to the floor breaking her arm.  The injury was extremely serious.  Her  arm was broken in three places.  She had to have an operation and metal plates were placed in her arm. At the time of her appeal she still had no feelings in her upper arm. Nerve damage had resulted and she remained on morphine and other medication.

The officer said to have caused the injury had been dismissed from the police for gross misconduct in relation to a separate incident.  He had given false statements in other cases. Despite that the prosecution still wanted to proceed with the appeal, but did not want to rely upon that officer at any appeal.

An automatic right to appeal

Our client’s automatic right to appeal the conviction from the Magistrates’ Court to the Crown Court provided us with an opportunity to review whether additional evidence ought to be before the Crown Court on appeal.

At Jon’s suggestion, Sarah obtained a medical expert who prepared a report after liaison with our client’s treating consultant.  The report confirmed that the injury could not have been caused by a fall or slip off the bed.  There would have had to have been a twisting of her arm, consistent with her account, to cause the injury.  This increased the likelihood of her success with her Crown Court appeal.

Prosecution abandoned its opposition to the appeal

The report was served upon the Crown Prosecution Service who sensibly indicated that they would no longer be contesting the appeal.  The matter was listed before the Crown Court and the Magistrates’ Court conviction was overturned.

Contact us about your Crown Court Appeal

While there are always risks in pursuing a Crown Court appeal of a Magistrates’ Court conviction in terms of sentence and costs you will always want to seek our advice quickly.

The time limit for submitting any appeal is very short.  Legal Aid might be available, as it was in this case.

You can read more about how we will advise you in relation to any appeal here.

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Our offices across the East Midlands

Your nearest office can be found here.  Alternatively you can use the contact form below.

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Convicted Before A Magistrates’ Court – Can I Appeal?

Convicted Before A Magistrates’ Court – Can I Appeal?

If you have been convicted by the Magistrates’ Court you might feel aggrieved at the outcome.  It is natural that you will wish to consider a Magistrates’ Court appeal.

Your grievance may arise because you think that your case was not prepared correctly.  It might be that you believe that the Magistrates’ reached the wrong result on the evidence that was heard.

For many people, a conviction can be a major barrier to obtaining or keeping employment.  It may be an impediment to overseas travel.  This may well be the case even where the offence itself is relatively minor.

We acknowledge that the court process can be far from perfect. If you have a grievance, it is only right and proper that you consider your options. including a Magistrates’ Court appeal.

So, what can I do about it?

The first thing to remember is that you must act quickly.  You only have 21 days from the date of sentencing to appeal your conviction.  As a result you should not delay in contacting us to discuss your Magistrates’ Court appeal.

If more than 21 days have passed then all might not be lost.  Please get in touch as soon as possible so that we can advise you about the possibility of an ‘out of time’ appeal.

When you contact us, we will also be able to consider and advise as to whether there are other avenues of appeal.  These may be either by way of judicial review or appeal by way of case stated.  Both of these methods of appeal are to the High Court.  These might be more suitable.

I pleaded guilty, can I appeal?

You might be able to appeal against ‘conviction’ if you pleaded guilty.  This will only be possible in limited circumstances.  These will exist only if your plea is ‘equivocal’. In this instance, there are two potential remedies that we will discuss  with you.  We will provide advice accordingly.

Do I need permission for a Magistrates’ Court appeal?

An appeal against conviction from the magistrates’ court to the crown court is what is termed ‘an appeal as of right’.  This means that you do not need any permission to appeal as long as your appeal is in time.

In effect, you are entitled to ‘2 bites of the cherry’ in terms of your conviction.  There are, however, some other issues such as sentence and costs that you should consider first.

Is my Magistrates’ Court sentence suspended pending an appeal?

Your sentence is not suspended pending appeal, although:

  • we can apply for bail if you are in custody; and
  • Apply for any driving disqualification to be suspended.

If you have been made subject to a community order, this will need to be complied with.  We will, however, take steps to try and expedite the hearing.

What happens at the appeal hearing?

The crown court, presided over by a Judge and Lay Magistrates (rather than a jury), will hear the case afresh.

As a result we have a valuable opportunity to review the case again on your behalf.  We will be able to identify what might have gone wrong at the first trial.  This will allow us to take steps to remedy any failures.

We can also examine what other evidence ought to the gathered on your behalf.  We can advise on any additional lines of attack that can usefully be deployed against the prosecution case.

If I lose the appeal, what happens?

If this happens then you will be re-sentenced by the crown court.  In addition you will be liable for prosecution costs. We will have an opportunity to discuss the costs implications with you in detail before you make any decision as to whether to appeal.

It is important to note that the crown court is not restricted to the same sentence imposed by the magistrates’ court.  As a result you may receive a higher penalty.

This will be one of the risks that you will need to balance.  This is also why we will at an early stage examine the other avenues of appeal with you such as judicial review and case stated.

Can I get legal aid?

magistrates' court appeal legal adviceMany people are eligible for legal aid.  We will advise you as to your eligibility when we meet with you.

If legal aid is not available for your Magistrates’ Court appeal then we will be happy to discuss fixed fee arrangements.  The cost of our high-quality representation is almost certainly much less than you might imagine it to be.

If you are successful in your appeal, and have funded your case privately, then some of your costs may be refunded to you.

Contact your nearest office for advice

magistrates' court appeal legal advice east midlandsAlthough you must act quickly in relation to your Magistrates’ Court appeal you must also consider it fully.  Please contact your nearest office to speak to a solicitor experienced in criminal law to provide you with full advice.

Alternatively you can use the contact form below and we will be in touch with you.

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