Senior Crown Court Litigator Sarah Lees-Collier was recently instructed in the case of a 65 year old defendant charged with serious sexual offences involving his foster or adopted daughters. The case involved careful and detailed cross examination.
The allegations were almost exclusively historic sexual offences, with the complainants giving very similar accounts of offending. All of the offences were denied.
Sarah had chosen to instruct experienced counsel Vanessa Marshall from 7 Bedford Row Chambers, known for her eye to detail and exhaustive analysis and preparation of such cases. During the currency of this case Ms Marshall discovered that she had been successful in her application to be Queen’s Counsel.
Expert cross examination of four complainants
Here, all four complainants had the benefit of special measures permitting them to give evidence behind screens. Cross examination was expertly conducted in relation to a great deal of material including social care records. A substantial amount of material was not disclosed until the trial had started.
Counsel insisted on sufficient time to be able to consider this additional material and plan her expert cross examination accordingly. One of the witnesses was extremely volatile under questioning.
The detailed preparation meant that we were able to show that the witnesses had told some lies that were relevant to the case. For example, one of the complainants had no choice but to accept that she had previously made false allegations about another carer. The defence identified, within the unused material, reasons why further false allegations might have been made.
Counsel had to treat the witnesses with care. It was clear that whatever the reality of the allegations they were now making, they had had a difficult early life.
Our client was of good character. As a result, character evidence was gathered. A number of witnesses attended court to speak as to his character in the trial.
Although the the trial lasted for five weeks, the defence was compelling. As a result, our client was found not guilty of all charges with the jury deliberating for just under three hours.
Our client was, of course, particularly pleased and relieved.
Contact a Crown Court litigation specialist
If you face proceedings before the Crown Court, whether you intend to plead guilty or fight your case at trial, you will want to instruct an expert Crown Court litigator.
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.
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 carefully 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. This 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.
When the Director of Public Prosecutions Alison Saunders feels the need to write to a national newspaper to apologise for a prosecution failure in an individual case, something significant must have gone wrong. The failure related to Crown Court disclosure of evidential material.
Of course, it might be thought a great pity that she chose to write to the newspaper first, rather than the person wrongly accused of rape.
So, what were the things that the prosecution and police got wrong in the case of Liam Allan?
Mr Allan was charged with multiple accusations of rape and sexual assault. This is the type of case that juries throughout the country grapple with on a daily basis. It would no doubt be a challenge for jury members in any circumstances.
Jury trial for serious sexual offences
First the jury would hear the complainant in alleging that she was a victim of serious sexual crime. The jury would then hear the position of the young man in question who had always stated that that it was all consensual.
As most sexual encounters happen in private, as lawyers we will often face cases where the case involves the word of one person against another. Can there be smoke without fire? Why would the allegation be made in the first place if untrue?
But what if the key to ‘solving’ the issue of whose account was correct was sitting in phone records that had already been obtained. All that was required was that people simply do their job. That was the situation in the case of Liam Allan.
After the alleged crime, the complainant sent a series of text messages to Mr Allan asking for more sex. The messages disclosed, in fact, that she wanted violent sex. She spoke about wanting to be raped. Even worse here, in a further round of texts, she made clear to a friend that no crime had been committed by Mr Allan.
This is the type of evidence which should hole a case below the water line, leading to the end of a prosecution. In this case it did, but only after two years. Mr Allan understandably described this period as a ‘living hell’.
Failure to disclose text messages
The sadness, in this case, is that it could have been avoided. This is because Mr Allan raised the issue of text messages in his police interview. His account was ignored. Instead, the officer in the case went on to also ignore clear guidelines on Crown Court disclosure. Although the police had the text messages he did not bring them to the attention of the prosecuting barrister.
It was only a very late intervention, three days into the trial, that uncovered what the police had known all along, that Mr Allan was innocent. So, in the end, all’s well that ends well. Commentators might argue that the system works. For Mr Allan, it will be a long time indeed before the scars of that period heal.
While we would wish to provide you with the assurance that Mr Allan’s case is a ‘one-off’, we cannot. The issue of disclosure has been a fundamental problem in the area of criminal justice for decades. This point has been illustrated by dozens of high profile miscarriages of justice.
It would appear likely that these cases must only be the tip of the iceberg. Every single day the liberty of people standing trial is put at risk due to failures within the disclosure process.
Ensure you receive proper Crown Court disclosure of evidence
Because we are acutely aware of these problems and the risks to your case of a failure of Crown Court disclosure, all of our staff work relentlessly to ensure that all relevant evidence is revealed by the police and the prosecution.
From first police disclosure, right through to trial applications, we do not rest until satisfied that cases of our clients are prepared to the very highest of standards.
Instruct an expert crown court litigator
We provide nationwide advice and representation from our six offices across the East Midlands. Please contact your most convenient office to make an appointment to discuss your case.
Nottingham criminal defence solicitor Nick Walsh recently represented a client who was in her sixties and of good character. She was charged with an assault by beating. The alleged victim was her neighbour, a male in his twenties. Cross allegations were made.
Neighbour dispute with a history of complaints
The background to the allegation was a history of complaints being made to the police by both parties. On this occasion it was alleged by the neighbour that he had been walking past our client’s address. As he did so she had shouted abuse from her window. She called him over to her window. When he approached and asked what she wanted it was said that she punched him in the face causing injury.
Free and independent legal advice in police interview
Nick’s client sought our free and independent advice in police interview. Having taken that advice she chose to answer questions. She admitted hitting her neighbour. Our client maintained, however, that this was because he had approached her, both drunk and abusive, and she thought that he was going to hit her.
She then went on to tell the police about an incident that had taken place the following week. His behaviour had been similar, but fortunately another neighbour had intervened to protect her.
Despite these denials, her age and lack of convictions, the police chose to charge our client. As is often the case the police failed to investigate the allegations that our client made about the complainant.
Nick’s client appeared at Nottingham Magistrates’ Court. She entered a not guilty plea and the case was adjourned for trial. In the meantime Nick traced the neighbour who had assisted during the second incident.
Cross allegations investigated with our help
As a result Nick advised his client to make a further complaint to the police. He helped her in making contact with the police and reminded them of their duty to investigate her complaint. As a result the police were finally persuaded to interview the neighbour in relation to the second incident. Bearing in mind this allegation was supported by an independent witness, the complainant was charged and became a defendant in these separate proceedings.
Successful written advocacy
Prior to trial Nick was able to make representations to the Crown Prosecution Service. He argued that the second incident was very important. It left the credibility of the complainant in ruins. The prosecution accepted that he had behaved as described in the second incident. Nick’s client’s defence was that he had behaved the same way a week before. As a result, he suggested that there was no longer a reasonable prospect of conviction.
The prosecution accepted this argument and discontinued the prosecution of our client.
Instruct a Nottingham Criminal Defence Solicitor
If you face charges before the court you will want to instruct an expert defence solicitor who is alive to the possibilities of written advocacy as well as the usual advocacy involving speaking in court.
Although this was a case where there may well have been a successful outcome at trial, we know that the sooner a case can be resolved in a client’s favour, the better for them. As a result, rather than wait for the trial date, Nick ensured that the prosecution had no alternative but to discontinue the case once the cross allegations were made.
You can contact our Nottingham office on 0115 9599550 24 hours a day, 7 days a week, for emergency free and independent advice and representation in the police station. Alternatively, contact us during office hours to make an appointment to see on of our solicitors.
There is also a contact form that you can use below.
Over recent years there has been a vast increase in the number of second hand mobile phones being sold online through such sites as eBay or Gumtree. Such purchases may not be without risk as a client found when charged with making indecent images!
Chesterfield criminal defence solicitor David Gittins recently represented a client who had bought such a phone. He had been arrested and charged with possessing indecent images on his second hand mobile phone. David’s client was adamant that he knew nothing about the images. He maintained he was not aware that they were in his phone.
The year long investigation was followed by proceedings before Chesterfield Magistrates’ Court. At trial David successfully argued that there was no case to answer. As a result the charges were dismissed.
Free and independent advice in police interview
David’s client had been arrested in the summer of 2016 for unrelated matters. His mobile phone was seized by the Police and examined. The Police found a small number of indecent images on the phone. Understandably they wanted to interview our client about this.
He sought free and independent legal advice from VHS Fletchers and was represented by David during two separate sets of interviews. Our client denied the offence saying he knew nothing about the images. He was unable to comment about how they got to be in his phone, nor could he help with when they got there.
‘Making indecent images’
As a result the our client could do little else but deny the allegation. The police and prosecution were not happy with these denials so he was charged to Chesterfield Magistrates’ Court. The charge was making indecent images between two dates in 2016.
Making indecent images does not necessarily involve taking a photograph. Downloading an image and making a new digital file is sufficient for a person to be guilty of an offence. The offence is likely to be treated seriously by the courts and therefore a prison sentence is often imposed. Although the ‘maker’ of the image is unlikely to have met the child, it is serious because there is a child victim at the end of the chain of ‘makers’ who copy the image.
David met with his client on several occasions to take instructions and give advice before trial. David’s analysis of the technical evidence showed that the prosecution could not show when the images arrived on the phone. In order to prove the offence the prosecution would have to show that our client was responsible for making indecent images.
The prosecutor could not show that the images were placed on the phone while it was owned by David’s client. Additionally, there was no evidence that the images had been opened and viewed since our client had owned the phone.
At no point during the prosecution was evidence called to challenge our client’s account that the phone was bought second hand. The prosecution simply sought to rely on a need by our client to explain the images. Our client, however, had the benefit of the burden and standard of proof and did not have to prove anything.
After the prosecution case had finished David considered the evidence that the court had heard. Because of this he decided to make an application of no case to answer. This can lead to a case being stopped before the defence case. It is possible in cases where there is no likelihood of a court finding a defendant guilty.
The Magistrates’ in this case agreed with David’s argument and the case against his client was dismissed.
His client was understandably delighted with this result. He had never been in trouble with the police before so kept his good name. He will hopefully be able to put the fourteen months that he had serious proceedings hanging over his head behind him.
Free representation with Magistrates’ Court legal aid
Legal aid is available for advice and representation before the Magistrates’ Court. It is dependent upon our clients satisfying the legal aid agency of the merits of their cases and that they qualify on their means. If it is granted then our advice and representation will be free of charge.
Contact a Chesterfield criminal defence solicitor
Whatever the allegation that you face, you will want to instruct an expert criminal defence solicitor who will analyse the evidence in your case and prepare it accordingly. In cases such as this, it is important that any gaps in the evidence are identified and exploited to obtain the best result for you.
Please call us on out office number 01246 283000. Alternatively you can use the contact form below.
‘Laughing gas’ is more properly known as Nitrous Oxide. It was recently back in the news following a Court of Appeal ruling that the substance is controlled by the Psychoactive Substances Act 2016.
The Act makes it an offence to possess psychoactive substances with intent to supply. In a certain number of limited cases, just possession a psychoactive substance alone is also an offence.
The appeals came about because of some cases reported in August 2017. In those case, Judges had ruled that laughing gas remained exempt from control under the Act.
The issue for the appeal was whether Nitrous Oxide was a ‘medicinal product’. If it was, then the offence could not have been committed.
In the four cases before the Court of Appeal, two appellants had been convicted after trial. The remaining two had pleaded guilty.
Following the hearing of the appeals the court ruled:
‘We are satisfied that in the circumstances of these cases the nitrous oxide in question could not be categorised as a medicinal product and therefore was not an exempted substance. In our judgment, the matter is clear on existing authority.’
So, is the matter settled?
The key words in the judgment are ‘…in the circumstances of these cases.’
So, to answer this question you need to understand a little more about the purposes of the Psychoactive Substances Act 2016. The Act applies to substances by reference to their effects. As a result there isn’t a list made up of substances and their individual chemical composition. The law is drafted to only criminalise their supply for the purpose of recreational drugs.
The argument has been put that because Nitrous Oxide is undoubtedly used for medical purposes, it would fall squarely within the medicinal products exemption in the Psychoactive Substances Act 2016.
The prosecution must prove an important ingredient of the offence. This is that any defendant in question intended to supply the substance for consumption for its psychoactive effects rather than for medicinal purposes.
As a result, liability under the Psychoactive Substances Act 2016 does not depend solely on the chemical composition or the effect of the substance, but also on the intent of the person possessing it.
In one of the appeals, the court held:
‘…the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.’
This case by case approach entails the possibility that different products with precisely the same chemical composition may fall within or outside the definition of medicinal product. This will depend on the circumstances of the individual case before the court.
Seek expert criminal advice if you are investigated for offences under the Psychoactive Substances Act 2016
These cases illustrate how complex the criminal law can be. Headlines in newspapers or online can be confusing, particularly when even the courts can come to different conclusions on the same set of facts. In cases such as this there will be differences of scientific opinion. It also takes some time for an appeal court to clarify the law.
In relation to Nitrous Oxide, it may be that further appeals will follow which may again alter the interpretation of the law.
Our independent advice and assistance in a police interview under caution will always be free of charge to you, whether you are under arrest or being interviewed voluntarily, whether you are in a police station or at your home address.
The trial was heard at Nottingham Crown Court and finally resolved in our client’s favour.
‘Investigation’ followed a familiar pattern…
The case followed a familiar pattern. The paedophile hunter had posted comments in various online chat rooms posing as a teenage girl. A person using the profile of our client had made contact and begun a sexually inappropriate conversation including sending explicit images. The paedophile hunter then arranged a meeting between the person and the girl.
Of course, if the person went to meet the child then instead he would be confronted by the vigilante. The confrontation would then be filmed and posted on social media. It is only then that the police are called.
…until nobody turned up at the meeting
This case was different, however, in that nobody turned up to the meeting apart from the hunters. They made visits to our client’s address but again to no avail. This did not prevent them posting their allegations on social media despite the fact they lacked the final part of the jigsaw to say who was responsible.
The police were eventually called and our client was arrested. Following interview he was charged with the attempts to contact children to send or receive sexual images. (((check the offences))))). It transpired that his profile had been used in three separate contacts with children.
Defence set out very early on in proceedings
Our client set out his defence very early on. He stated that he was not responsible for the messaging and that somebody else had been using his profile although he could not say who. On his behalf, Caine told the court and the prosecution that the mobile phone handsets used by his client and the paedophile hunters would need to be examined by the defence bearing in mind the defence.
The evidence provided so far was in the form of screenshots rather than the individual messages within the applications. An analysis of both the applications and WhatsApp conversations would be necessary. The prosecution’s own telecommunications expert confirmed that such an examination would be necessary to look at the source and provenance of the messages.
One handset missing – but whose fault?
Andrew and Caine became increasingly concerned about whether the defence would have an opportunity to examine the handsets. Eventually, in relation to two sets of allegations, the prosecution confirmed that they did not have the phone. The key witness, the paedophile hunter, gave a statement stating that he had handed the phone to the police. The police denied that this was the case.
It appeared unlikely that the hunter was telling the truth as neither his original statement nor that of the officers contained any reference to a phone being received into evidence.
Delayed access for our expert witness
In relation to the final set of offences, the police only permitted access a week before the trial. The report received cast doubt on police evidence that certain photographs to be found in the screenshots of chats were recovered from our client’s phone handset. Andrew had been unable to find them and nor could our expert.
Andrew prepared skeleton arguments. The first was in relation to whether the prosecution ought to be allowed to carry on with the first two sets of proceedings. There had been a failure by the police to secure key evidence. We had been unable to properly examine the device that was the source of the screen shots.
Secondly, the Crown needed to apply to amend the indictment to add the final set of charges. The evidence did not appear to support the addition of these new charges as key photographic images had not been found on our client’s handset, despite police assertions to the contrary.
No-show of paedophile hunter at trial
The prosecution succeeded in its application to add two new charges to the indictment.
However, the witness who was responsible for the missing handset failed to attend court on the first day of the trial. He left a message that he would not be attending, but when further information was sought he refused to answer his phone or respond to messages.
Wisely the prosecution chose not to proceed with the first five charges.
Significant failure in disclosure of evidence by prosecution
Time had to be spent in resolving the issue of the missing photographs for the remaining two charges. It transpired that when our expert had examined the phone of the other paedophile hunter the police had not prepared their own download so no detailed analysis was possible within the timescale allowed by the police.
Further, both our expert and Andrew had only been given half the download of our client’s own handset. The images recovered from the memory card had not been supplied. As a result, at lunchtime on the first day of the trial Andrew was served with two further discs. The first was the contents of the memory card. This amounted to over 36 000 images contained within 12 500 pages of PDF pages.
The second disc was password protected and was the download disc for the paedophile hunter’s phone.
Somebody else’s holiday photos
During the evening, Andrew began to look at the contents of the memory card. It became clear that the photographs in the main did not belong to his client. There were hundreds of holiday photos that did not show his client. As the phone was brought second hand then it was assumed that these were the photos of the previous owner. The photos were not in date order and not catalogued in a way that would allow them to be examined so Andrew abandoned his analysis.
Password given by police was wrong
Andrew was unable to view the contents of the password protected disc. The following morning it became clear why. The police had missed a crucial digit from the password. When Andrew was able to open the disc at the start of day two of the trial he was faced with a further 1800 thumbnail images that were again not catalogued in a way that permitted analysis in the timescale of the trial.
Legal argument on abuse of process
As a result, Andrew prepared a further argument that maintained that it would be an abuse of the process of the court to permit the prosecution to proceed. Alternatively, Andrew argued that all of the evidence of the chats and the photographs should be excluded for unfairness under section 78 Police and Criminal Evidence Act 1984.
The Judge agreed with Andrew’s abuse of process argument and stayed the proceedings. She agreed with Andrew’s submission that in cases that were begun by amateur detectives such as paedophile hunters it was incumbent on the police and the prosecution to ensure that thereafter the defendant had the protection of the relevant law and rules.
Here our client was unable to have his case properly presented, even in relation to the last two charges, as the prosecution had not made early disclosure of relevant evidence in a way that permitted it to be examined and challenged. Neither Andrew or the defence expert had been able to prepare a proper challenge to the evidence in the case. Our client was unable to have a fair trial.
Proceedings were stayed and our client was discharged. The judge made the point that even if she were wrong to have stayed proceedings, she would have agreed with the application to exclude all of the evidence upon which the prosecution could found the case. The case would have ended in a similar way for our client.
Crown Court legal Aid ensured free representation
Our client had the benefit of legal aid. This ensured that he did not have to pay for the representation of either Caine or Andrew. Further, he did not have to pay for what was an expensive analysis of the handsets in this case. More about Crown Court legal aid can be found here.
Instruct an expert in defending Crown Court cases
We have lawyers skilled in defending Crown Court trials at all of our six offices across the East Midlands. Please find the office nearest to you here. VHS Fletchers will provide nationwide advice and representation, whether that is in police interview, before the Magistrates or at the Crown Court.
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.
Police forces across England and Wales are preparing for a rollout of ‘Body-worn Cameras’ or Bodycams. The government has announced that prison officers will shortly be assisted by this new technology as well.
What are Body-worn Cameras?
Body-worn cameras (BWCs) are small recording devices, very similar to a GoPro, which allows for constant audio and video recording in an unobtrusive manner.
The evidence from these cameras can be used to support a prosecution. Some argue that with officers and others aware that their actions could be caught on camera it should result in a positive effect on the behaviour of both the public and the police.
Is behaviour calmed when a camera is present?
It might be generally accepted that we behave better when being watched. For example, we are less likely to speed past a roadside camera or get involved in unlawful activity if we know we are being observed by CCTV.
In 2011, researchers at Newcastle University posted pictures of a pair of male eyes and the caption, “Cycle Thieves: We Are Watching You.” Bike thefts decreased by 62 percent in those locations. They remained the same elsewhere.
A study in Rialto, California (USA) in 2012 appeared to show dramatic changes in police behaviour as well following the use of body-worn cameras. Complaints against police officers were down 90% compared to the previous year. Some critics, however, have been sceptical of this study. In part this was because only fifty-four officers participated.
That caution did not result in a slowdown of the deployment of body-worn cameras. By 2015 95% of US large police departments had deployed BWC or had committed to doing so.
Now, police forces in England and Wales are following suit.
The Rialto findings seemed to accord with common sense, but a new eighteen month study of more than 2000 police officers in Washington (USA) was published on 20th October. This disclosed ‘almost no effect’ on police officer behaviour.
Are BWCs a waste of money then?
This is a controversial question, and there may be many reasons for the Washington findings.
Other arguable benefits of BWCs are:
Detecting rogue officer behaviour after the event
Accurate recording of evidence
Building community trust in the police
Another new study will be published in the November 2017 issue of the Policing journal. In this research 249 people were interviewed. They had had recent encounters with officers wearing cameras. Those who were aware of the cameras perceived the encounters as more “just” than those who were not.
It would appear that the jury remains out as to the effect of Body-Worn Cameras by the police. Supporters claim that there are definite benefits for both the police and the public. Detractors cite privacy concerns, sizeable public expenditure to fund the cameras and a lack of evidence to support their continued deployment.
What is clear to us is that we see the evidential worth of cameras in an increasing number of cases. Such evidence must, however, be analysed carefully. It would be wrong to believe that ‘the camera never lies’. We often find that video evidence is taken out of context. It can be distorted. On occasions when it might be thought to be helpful to the defence it can go missing.
Contact a criminal defence specialist to discuss these issues
We have recent experience of dealing with cases where the footage from Body-worn cameras was decisive in putting forward our clients’ defences.
If you face criminal proceedings you will want to instruct a criminal defence lawyer who will ensure that evidence such as bodycam footage is analysed and deployed effectively in your defence.
We have offices across the East Midlands in Nottingham, Derby, Chesterfield, Mansfield, Ilkeston and Newark. All of our office numbers can be telephoned 24 hours a day 7 days a week to ensure free and independent legal advice is given to those detained in a police station.
Alternatively you can use the form below to make contact.
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
Our 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.