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Archive for the ‘News’ Category

Sentencing Is Its Own Risky Business – The Hidden Penalty

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When clients turn their mind to what punishment they might receive if they plead guilty to, or are convicted of, a criminal offence, in most cases the thought is whether it might be a prison sentence, a community penalty, or a hefty fine.

While the substantive penalty is, of course, important, on occasion there are other things more serious to consider. In previous articles, we have looked at issues such as confiscation, and in this article, we consider director disqualification.

 

What do business people need to consider?

The Company Directors Disqualification Act 1986 provides that a court may make a disqualification order where a person is convicted of an offence which is concerned with the mismanagement of a company.

There are a wide number of scenarios catered for under the Act, so the actual circumstances must be considered with care. In certain situations, offences committed abroad qualify (see section 5A).

 

What conduct is relevant?

Both the internal and external management of the company are relevant to s 2(1) of the 1986 Act (Corbin (1984) 6 Cr App R (S) 17), as is a Director’s general conduct in running the affairs of the business (Georgiou (1988) 10 Cr App R (S) 137).

The court has extensive discretion in relation to most offences:

‘This is a completely general and unfettered power given by Parliament to courts on the occasion when a person is convicted of an indictable offence of that type. Parliament has decided not to give the sentencing court any guidance as to the way in which it ought to exercise its powers of disqualification in the very many and varied circumstances in which it may come to exercise those powers” (Young (1990) 12 Cr App R (S) 262).

 

What is a ‘disqualification order’?

The effect of the order is to prevent a person being involved in the future affairs of [any] company:

(a) he shall not be a director of a company, act as receiver of a company’s property or in any way, whether directly or indirectly, be concerned or take part in the promotion, formation or management of a company unless (in each case) he has the leave of the court, and

(b) he shall not act as an insolvency practitioner.

 

How long does the order last?

An order made by a magistrates’ court may last no longer than five years; an order made by the crown court no longer than fifteen years (although this is lower for some offences).

The Court of Appeal has on occasion supported the making of lengthy orders, for example, one lasting eight years in R v Singh-Mann and Others [2014] EWCA Crim 717.

 

Will a guilty plea make any difference as to the length of the order?

A guilty plea will not act to reduce the disqualification period as discount for early plea does not apply to ancillary orders (Clayton [2017] EWCA Crim 49, [2017] All ER (D) 71 (Jan)).

Note however that it is inappropriate to order disqualification where the offender is conditionally discharged (Young (1990) 12 Cr App R (S) 262).

It may be inappropriate for a court to order compensation to be paid by a director who by virtue of the making of this type of order will be deprived of the ability to earn a living (Holmes (1992) 13 Cr App R (S) 29).

 

What happens if I breach the order?

Imprisonment of up to 2 years may be imposed if an order is breached.

 

How we can assist

We are experts in all aspects of criminal law, well placed to advise you if the above provisions might be invoked in your case. If you have any concerns or simply to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Did Ant Get Off Lightly?

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A lot has been written in recent days about the sentence passed following Ant McPartlin’s (of ‘And and Dec’ fame) conviction for drink driving, in this article, we examine the case in a little more detail.

 

What offence was he charged with?

McPartlin pleaded guilty to an offence of driving with excess alcohol (‘drink driving’), that resulted from a road traffic accident which occurred on 18th March 2018.

His breath alcohol reading was 75 microgrammes of alcohol in 100 millilitres of breath – the legal limit is 35 microgrammes per 100 millilitres of breath. So, a little over twice the legal limit.

 

What was the sentence?

McPartlin was fined the sum of £86,000 and disqualified from driving for a period of 20 months, which will be reduced to 15 months if he completes a rehabilitation course.

 

That’s a lot of money!

Yes, it is.

His net weekly income was declared as £130,000. The sentencing guideline suggests a Band C fine, which would have resulted in a fine before discount for plea of £195,000, being reduced to £130,000 in this case (as he pleaded guilty at the first opportunity).

Given that the fine imposed was £86,000, not £130,000, we can infer that the Judge applied a seemingly more lenient Band B fine.

But, that leniency is fully in accordance with the sentencing guideline which is designed to ensure that the fines for high net worth individuals are not disproportionate to the seriousness of the offence. You can view the guideline here: https://www.sentencingcouncil.org.uk/offences/item/excess-alcohol-driveattempt-to-drive-revised-2017/

Many have said that this fine will have no impact on McPartlin due to his wealth. That is probably right. Indeed, a fine of £130,000 probably would not either.

But by any measure, it is a substantial sum of money, and fines are not designed to break a person financially but to deprive someone of income and pay that sum back to society.

 

Why did he not receive a community penalty?

The guideline suggests a sentencing range, from fine through to community penalty, with a community penalty being at the top of the range. The alcohol reading puts criminality bang in the middle of the range.

There are however four aggravating features of the case, and three mitigating ones, so that raises the penalty somewhat.

Also, he has the benefit of what is often termed ‘positive good character’, i.e. behaviour traits that go beyond simply not breaking the law. He has supported, both financially and otherwise a large number of charities over a great many years, and that contribution to society is recognised by courts. Even if a court had been considering whether this offence might have crept into community penalty territory, most judges would have drawn back from it given the importance of his ongoing treatment for addiction problems.

Sentencing is not a mathematical exercise, but looking at the facts, it would be hard to justify a community penalty.

 

What about the ban?

Once again, 20 months is spot on. The reduction for completing a rehabilitation course is something that is offered to most first-time offenders.

 

Was his driving not careless or dangerous?

The driving was certainly careless, but there would have been no point in charging that in addition to drink driving as all of the facts (including the crash) would be taken into account in any event.

It is arguable that the driving was dangerous, but the Crown Prosecution Service has charging guidelines for this offence, and it is no surprise at all that the charge was not added.

 

So, he was treated as anyone else would be?

Yes, he lost two-thirds of his weekly income and received the same disqualification that someone not in the public eye might have been expected to receive.

 

How we can assist

All of our team regularly represent motorists facing criminal prosecution. If you have any concerns or simply to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Burglary and Self-Defence

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The law of self-defence is again in the spotlight following the case of 78-year-old Richard Osborn-Brooks who was briefly investigated after the fatal stabbing of a burglar who entered his property.

Mr Osborn-Brooks woke in the early hours to find two men in his house and stabbed one of the intruders in the upper body, resulting in death.

 

So, what are your rights when dealing with an intruder?

Is revenge an option?

There is no ‘right of revenge’ in English law, punishment, following conviction is meted out by the courts.

 

Can I Defend Myself or my Family From Attack?

You do have the right to use reasonable force to defend yourself.

There is a mix of statutory and common law provisions that provide for self-defence.

Section 3 of the Criminal Law Act 1967 provides:

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

The government, with much fanfare, enacted section 76 of the Criminal Justice and Immigration Act 2008, to provide for a so-called ‘householder defence’. Also, case law (common law) also defines the scope of this defence.

 

What does self-defence mean?

In Palmer [1971] AC 814 the court stated:

“In their Lordships’ view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction.”

In Ray [2017] EWCA Crim 1391 the court went on to consider the amendments made by the Criminal Justice and Immigration Act, and the following principles emerge:

  1. The jury must first establish the facts as to what happened.
  2. Then the jury must decide whether, in those circumstances, the degree of force used was reasonable.
  3. In determining the question of whether the degree of force used is reasonable, in a householder case, the effect of s. 76 (5A) [of the CJIA 2008] is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self defence is not made out.
  4. If the degree of force was not grossly disproportionate, then the effect of s.76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force. The jury are in such a case, where the defendant is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable.

It can be said therefore that the statutory provisions have slightly refined the common law so far as householder cases are concerned in that a degree of force used that is disproportionate may nevertheless be reasonable.  In a non-householder case the position is different; in such a case the degree of force used is not to be regarded as reasonable if it was disproportionate

The Judge should be very careful when summing-up to ensure that a jury is aware of the special feature of householder cases, in Ray, the court stated:

“It nevertheless may not always be easy for a jury readily to appreciate the task that faces them in a householder case. It is therefore important that when summing up in cases where the householder’s defence is raised the judge gives some colour to the issue of self defence which arises. It may be helpful to explain to the jury in general terms that Parliament has conferred a greater latitude in cases of a householder in his own home, for reasons they will doubtless readily understand. It can be pointed out that what might be an unreasonable degree of force used when confronting an aggressive individual in a club might not be so when used by a householder confronting an intruder in his own home. That is why it is particularly important that the jury assess the defendant’s actions by reference to the circumstances in which he found himself and as he believed them to be – a point that can then be illustrated and expanded in the summing up with the detail appropriate to the case. However, it must of course be made clear to the jury that the use of force that is grossly disproportionate (completely over the top, in ordinary language) can never be reasonable.

It would, in our view, generally be helpful also to explain to the jury in such a case in everyday language the dilemma that would confront any householder when an intruder enters his or her house.

The householder is entitled to some latitude as to the degree of force used; if the jury do not regard the degree of force as being completely over the top they need carefully to examine all the circumstances in determining whether the prosecution have proved that the degree of force used was unreasonable. It is this context that differentiates the householder case.

It would often be helpful, for that purpose, to spell out the kind of circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable. These might, for example, include the shock of coming upon an intruder, the time of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a knife or stick that would lawfully be to hand in the home), the conduct of the intruder at the time (or on any relevant previous occasion if known to the defendant). Each of these might lead to the view that what was done, such as using a knife, which otherwise in a different context might be unreasonable, in the circumstances of a householder coming on an intruder might, in all the circumstances of such a case, be reasonable.

Another useful illustration may be the question of retreat. S. 76(6A) makes clear that there is no duty to retreat; the possibility of retreat is but a factor in determining whether the degree of force used was reasonable. If there is a threat of confrontation in the street, then the option to retreat may be important in determining whether the use of any force was reasonable. In the case of an intruder in the home, however, the option of retreat is unlikely to arise in many cases and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable.”

 

Is this a straightforward law to understand and apply?

No, not really!

But it essentially boils down to this – if you do what you genuinely believe to be necessary to defend yourself or others from attack, the law will provide a defence. Your response will not be judged to a nicety, and the case law makes very clear that a degree of latitude will be given, due to the particular circumstances that you would face.

The case of Mr Osborn-Brooks is tentative support for the rebalancing of law in this area having worked well.

 

How we can assist

To discuss any aspect of your case please contact us on 0113 247 1477 or email us at [email protected].

Do I Need a QC?

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We are often asked questions about QCs, most probably because the image of leading barristers has been epitomised over the years in leading television dramas such as Silk and Kavanagh QC, it is therefore not surprising that you may want to discover more and consider whether you ought to instruct a QC to defend your case.

 

So, first, what is a QC?

A QC, to put it somewhat grandly, is ‘one of Her Majestys’ Counsel, learned in the law.’

The first thing to know is that there is no actual connection to Her Majesty, as QCs, while appointed with the final authority of the Queen, are in fact selected by an independent appointments commission.

In practical terms, QCs are barristers or solicitors who have been able to evidence the highest courtroom skills; it is an award for excellence in advocacy.

While the figures vary year on year, about 10% of the bar (barristers profession) are QCs, so it is a pretty select group. There are very few solicitor QCs as the ability of solicitors to apply was only extended to them quite recently, and the number of solicitors who specialise in advocacy is relatively low.

There are also honorary QCs who in most instances do not practice at all (such as legal academics), or if they do are not allowed to use the title for that purpose.

 

Do I need a QC?

There are some things to consider. The first is that the QC may not be the best person for the job. In many cases, before the magistrates’ court, it is often better to instruct a highly experienced local solicitor who knows the court and this type of court procedure. It may be that a QC who is accustomed to defending fraud cases at the Old Bailey may be quite useless appearing on a drink-driving accusation at Warrington Magistrates’ Court.

But, generally speaking, in a perfect world, it makes sense to have the best available advocate, if you can. The ‘best’ may not always mean a Qc though.

If the case is not the most complex, it may well be that a highly experienced junior advocate can more than adequately deal with it. There are also some specialist areas where a junior advocate may be more experienced; we often see this in regulatory work for example.

It is also essential that the advocate works seamlessly as a team with your solicitor to ensure the best case preparation possible; this is something that we value particularly highly as it can significantly affect the overall outcome.

Where liberty is at risk, it is, however, understandable that some people will wish to leave nothing to chance, and will feel a particular level of comfort in instructing a QC.

So, for most people, the issue is not ‘should I?’, it becomes one of ‘can I?’.

 

So, can I instruct a QC?

If you are funding your defence costs, the crucial question is whether you can afford to instruct a QC. In some instances, it may be possible to instruct a QC alone to defend, but in others, a QC and junior advocate will be needed (and ironically might be more cost-effective).

It is impossible to give indicative costs as this will vary greatly depending on the type of case, the volume of papers, whether it is a guilty plea or contested trial, and if a trial, the likely length.

In all but the most straightforward guilty plea cases the cost can easily reach into the tens of thousands, so for all but the very wealthy, this is a considered decision and one that should not be made lightly. We will of course carefully navigate you through all of the available options.

If your case is legally aided, then it is very unlikely that we can instruct a QC unless the case is one of particular gravity or the utmost complexity. Most people would assume for example that a QC would be permitted in all murder cases, but surprisingly that is not the case. If the option of a QC is available, we will make the application for you and advise of the outcome.

Many people ask whether they or someone on their behalf can pay privately for a QC while receiving legal aid funding for the other elements of the case. If that is something that you wish to discuss, then please speak to us at the earliest opportunity.

In conclusion, there are many cases where a QC is desirable if it can be achieved, however, the vast majority of cases will nor merit a QC, and you can be assured that we will ensure representation designed to bring about the best possible outcome.

As a firm, we are immensely proud of the strong working relationship that we have with all of the advocates we regularly instruct. It is probably this close relationship more than anything else which affects case outcomes, so even if you cannot secure a QC to represent you, you should not feel that you are not getting the very best service.

 

How we can assist

To discuss any aspect of your case please contact on 0113 247 1477 or email us at [email protected].

Searching For Answers

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In Entick v Carrington (1765), a case concerning the entry to and searching of premises, the court ruled:

“…if this is law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.”

Entick v Carrington is probably the earliest case law concerning the law of search and seizure, a legal power now described as a ‘nuclear option’ in the court’s arsenal (R (Mercury Tax Group) v HMRC [2008] EWHC 2721). But, it is certainly not the last word, and over the previous few years, there has been a substantial body of developing case law designed to ensure that this most potent state intrusion into the lives of individuals and business is exercised lawfully and proportionately.

Why does it matter?

First and foremost, core constitutional principles are at stake, the power of the state to enter private property (very often during a dawn raid and with the family present) should not be used lightly, particularly during what is normally the early stages of a criminal investigation. Warrants should only be sought as a “last resort and should not be employed where other less draconian powers can achieve the relevant objective” (R (Mills) v Sussex Police and Southwark Crown Court [2014] EWHC 2523 (Admin)). The taking of documents, files, computer servers and systems can have a profound reputational impact on business when staff see what is happening, and they and clients lose confidence in the business. The inability to carry out ‘business as normal’ can put the survival of business at risk and can place an unbearable toll on the individuals involved.

Can I challenge a search warrant?

The powers of search and seizure are spread out over a great many legislative provisions, and the key message is to take legal advice as soon as you are aware that anything might happen or has already happened.

What is clear is that warrants are very often granted on an erroneous basis, with scant regard for the legal principles involved.

Drawing a warrant too widely is a frequent issue (see: R (F, J and K) v Blackfriars Crown Court and Commissioner of Police of the Metropolis [2014] EWHC 1541 (Admin)).

While warrants are issued via a judicial process, the Judge will only be able to rely on what is disclosed by the investigator in private.

Police officers are duty bound to provide the court with full and frank disclosure, highlighting any material which is potentially adverse to the application. This includes a duty not to mislead the judge in any material way. The judge must then apply a rigorous critical analysis to the application so that they can be satisfied that the evidence provided justifies the grant of the warrant and give reasons for their decision.

In Redknapp v Commissioner of Police of the Metropolis [2008] EWHC 1177 (Admin) the court ruled:

“The obtaining of a search warrant is never to be treated as a formality. It authorizes the invasion of a person’s home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate or Judge in the case of an application under s.9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted.”

There are various avenues of legal address available, including judicial review. Early intervention may result in the return of documents and property, and in some instances, a claim for damages might be possible.

How we can assist

To discuss any aspect of your case please contact us on 0113 247 1477 or email us at [email protected].

New Domestic Abuse Protections Announced

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In a major announcement, the government has signalled a busy year ahead with legislative changes affecting the criminal law.

Following on from the recent announcement about the sentencing of domestic abuse offences, the government has announced further reforms. There will be a new definition of domestic abuse making clear that it applies to all relationships and victims and encompasses economic abuse and controlling behaviour.

The new statutory definition of domestic abuse (subject to consultation) is:

Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexual orientation. The abuse can encompass, but is not limited to:

  • psychological
  • physical
  • sexual
  • economic
  • emotional

Controlling behaviour: Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour: Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.

New Protective Order

The Government proposes to create a new Domestic Abuse Protection Notice (DAPN), which could be made by the police, and a Domestic Abuse Protection Order (DAPO), which could be made by the courts in a wide range of circumstances.

These measures would bring together the strongest elements from existing protective orders used in domestic abuse cases, creating a single, flexible pathway for victims, police and other practitioners.

While the existing domestic violence protection notice and order will be replaced by the new DAPN and DAPO regime, other existing orders, such as restraining orders, non-molestation orders and occupation orders, will continue to exist as these provide protection in situations other than domestic abuse.

The new order could be made by a court following a freestanding application, including by the victim and certain parties on the victim’s behalf (for example a family member or support service), and could also be made by a court during any ongoing proceedings, including on conviction or acquittal in any criminal proceedings. The police would also have the power to apply for the new order, including after they had made a Domestic Abuse Protection Notice. In practice, this would mean that Domestic Abuse Protection Orders could be made in family, civil and criminal courts. The new order would also be more flexible in terms of the conditions that could be attached to it, which could include both prohibitions (for example requirements not to contact the victim, including online, not to come within a certain distance of the victim, and not to drink alcohol or take drugs) and positive requirements. These positive requirements could include attendance at perpetrator programmes, alcohol and drug treatment programmes and parenting programmes. Electronic monitoring (for example location or alcohol monitoring) and notification requirements (for example the requirement for certain perpetrators to provide the police with personal information such as their address and details of relationship and family circumstances) could also be used as conditions attached to the new order.

There would be flexibility as to the length of time that the new order could be in place: it could be for a period to be specified by the court or until the court made further order, in contrast to the current maximum duration for the existing domestic violence protection order of 28 days.

It would be a criminal offence to breach a Domestic Abuse Protection Order.

How we can assist

We are experienced in defending all manner of domestic abuse accusations. Very often domestic incidents spiral out of control all too easily, and the first account made to a police officer may not reflect the full and detailed background, nor adequately explore the other side of the story. We take nothing at face value, preferring instead to step back and build our own accurate picture of the real prosecution and defence case. In our experience, the protective order regime is often not applied correctly, and you can be assured that any orders sought will be no more onerous than properly prescribed by law, and subject to the most intense scrutiny.

To discuss any aspect of your case please contact us on 0113 247 1477 or via email at [email protected].

 

Choosing a Solicitor – One Chance to Get It Right

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For many people, facing the prospect of criminal investigation or proceedings is a daunting prospect, one that can often inflict a heavy toll not just on themselves, but also on their loved ones.

It is therefore essential that proper professional support mechanisms are in place at an early stage.

The Golden Rule

It is never too early to involve a solicitor.

It is surprising just how many people put this off to a late stage in an investigation; some people are afraid of the cost (yet ironically legal advice is free at the police station), some think it might be seen as an admission of guilt (it isn’t), and the greater group may simply be hoping it will all go away (sometimes it does, but often it does not).

The ‘Right’ Solicitor

It is a trite observation to state that you must choose the ‘right’ solicitor.

However, if your case depends on legal aid funding, a wrong choice may not be easily remedied as courts will need good justification to transfer legal aid to another firm.

If you are unhappy with your solicitor then the sooner this is resolved, the better.

But, how do you find the ‘right’ solicitor?

It is perhaps a strange thing to say, but you need to view this professional relationship as you would any other.

Essentially, hand on heart, does the relationship feel right for you?

Some of the things that will help you decide are:

1. Is your initial enquiry dealt with promptly? If not, then this is perhaps a sign of things to come, nobody wants a solicitor who is too busy or too lazy. You should expect any initial enquiry to be dealt with within one working day at most. Moving forward you should be able to contact your solicitor easily, with clear expectations as to response times.

2. Do you get the sense that the solicitor appreciates that you have not only a legal problem but a personal one? Empathy and understanding are critical skills and essential to excellent communication.

3. Is there an action plan? By that, we mean, at the end of each meeting do you know what is happening next – the overall direction of your case?

Sometimes there are periods of long inactivity which can cause concern to clients if they are not expecting this. A good solicitor will outline the legal process and ensure you are kept fully informed at all stages.

4. Does your solicitor command your confidence? Do you go away from meetings reassured and comfortable, do you actually understand what has been said to you? If not, then this is a source of great concern.

5. Are your concerns met, or brushed aside? This is your case; you are not a mere observer, and you deserve to have any anxieties resolved.

If things go wrong

In the first instance, you should raise your concerns as soon as they arise, as this ensures the best chance of resolving them. Often concerns arise due to misunderstandings that can be quickly and easily remedied.

If concerns remain then consult the firm’s complaints procedure and escalate the matter to more senior staff.

The point of no return

If you cannot resolve matters to your satisfaction or believe that the relationship is beyond repair, then it is essential to contact a new firm without delay.

How can we assist?

We do not encourage potential clients to seek a transfer of representation lightly, only where the client’s needs are not being properly addressed do we believe that a transfer should be sought.

But, you do get only one chance to get it right.

We care passionately about the service we give to every client, so if the time has come to switch solicitors, get in touch, and we can advise further.

For a confidential and private consultation, please contact us on 0113 247 1477 or via email on [email protected].

Shaken Baby Syndrome

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The unlawful death of a child is always a deeply traumatic act and one that shakes any society to its core. For some parents, it represents not only a deeply personal and tragic loss but the beginning of a nightmare.

The reality in most murder and manslaughter cases is that the perpetrator is known, and close to the victim. Investigators will, therefore, look closely at the parents when a child dies, an approach which for a grieving parent can only add to the pain that they are suffering.

Experts will be brought on board very quickly to establish a cause of death, and in some cases, this will be stated to be from injuries caused by excessive shaking, often of such force that it is described as being the equivalent of a car-crash.

An allegation of shaking is often based on the presence of three things (the ‘triad’):

  • Swelling of the brain
  • Retinal bleeding, and
  • Blood in the dura (an area between the brain and skull)

The presence of these injuries, as proof of violent shaking, can be found mainly in medical literature emanating from the United States as early as the 1940s.

The research findings went largely unchallenged until 2001 when Dr Jennian Geddes published a paper that offered up alternative explanations for the medical results. In later years other experts would revisit this area of medicine, and they too argue that other factors may be in play.

Experts who have challenged the conventional interpretation of the ‘triad’ have often paid a hefty price.

Dr Waney Squier, a well-known expert in this area, who has acted in a great many cases, was struck off by the General Medical Council (Medical Practitioners’ Tribunal) following a prolonged campaign to discredit her.

However, the GMC finding was reversed by the High Court in November 2016 (Squier v General Medical Council [2016] EWHC 2739 (Admin)).

The science in this area is still in a state of flux, and from a criminal law perspective that is a critical issue as cases must be proved to a standard so that the jury can be sure of the defendant’s guilt.

How can we assist?

The highest quality criminal defence work requires not only an understanding of the law, which should be a given but of other related areas, such as medicine. By quickly identifying the pertinent issues we can pull together a top team of advocates and experts with an intimate knowledge of this complex area.

At the same time, we do not lose sight of the fact that people facing these allegations are still in a state of profound shock and grief.

For a confidential and private consultation, please contact us on 0113 247 1477 or email us on [email protected]. Got a comment on this story? Join in the conversation over on Twitter – we’re @OGarras.

Knife Crime – Sentencing Changes

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Knife crime is very much on the political agenda, with a number of stabbings having taken place over the last few weeks, resulting in deaths and injury, and no doubt the loss of liberty in due course for those responsible. Attention is now focused on using deterrent sentences to discourage knife possession.

The Sentencing Council, which is responsible for setting sentencing guidelines in England and Wales, has today issued a new guideline for knife crime offences.

What offences does it cover?

The guideline applies to offences of:

  • Possession of an offensive weapon in a public place
  • Possession of an article with a blade/ point in a public place
  • Possession of an offensive weapon on school premises
  • Possession of an article with a blade/ point on school premises
  • Unauthorised possession in prison of a knife or offensive weapon (adult guideline only)
  • Threatening with an offensive weapon in a public place
  • Threatening with an article with a blade/ point in a public place
  • Threatening with an article with a blade/ point on school premises
  • Threatening with an offensive weapon on school premises

The guideline does not cover situations where a knife or other weapon is actually used to harm someone. This would come under other offences such as assault or murder/manslaughter. Similarly, it does not include the use or possession of firearms which is covered by different legislation.

Does the guideline apply to all offenders?

The new guideline applies both to adults and those under 18. In relation to the latter, the guideline will work alongside the Sentencing Children and Young People guideline and encourage courts to look in far greater detail at the age/ maturity, background and circumstances of each offender in order to reach the most appropriate sentence that will best achieve the aim of preventing re-offending, which is the main function of the youth justice system.

What will be the effect of the new guidance?

Leading Court of Appeal judgments have emphasized the seriousness of this type of offending and have set out sentence levels that senior judges see as appropriate for dealing with offenders.

The proposed guideline takes these changes to the law and court judgments into account in consolidated, up to date guidance. It ensures that those offenders convicted of offences involving knives or particularly dangerous weapons, as well as those who repeatedly offend, will receive the highest sentences. The introduction of the guideline may, therefore, lead to some increases in sentence levels, predominantly in relation to adults convicted of possession offences.

Are there any minimum sentences for these offences?

The law on mandatory sentences for offences involving bladed articles or offensive weapons states:

  • Where an offender is convicted of a second (or further) bladed article/ offensive weapon offence the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.
  • Where an offender is convicted of threatening with a bladed article/ offensive weapon the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.

 

As the guideline gives the highest sentences to those offenders who threaten with knives or highly dangerous weapons, these offenders will always receive sentences greater than six months. The combination of the legislation and the guideline may therefore mean that there is an increase in sentences received by some offenders convicted of these offences.

Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider it unjust to impose the statutory minimum sentence.

The court should consider the following factors to determine whether it would be unjust to impose the statutory minimum sentence:

  • Strong personal mitigation
  • Whether there is a strong prospect of rehabilitation
  • Whether custody will result in significant impact on others

What about ‘highly dangerous weapons’?

Additional guidance has been included as to what constitutes a highly dangerous weapon.

This has been set out as follows:

“An offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury or is intended by the person having it with him for such use”.

A highly dangerous weapon is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.

How we can assist

Sentencing is a complex process and all of our advocates understand how to navigate sentencing guidelines and ensure that they are not applied in a mechanistic manner, instead ensuring the court focusses on all relevant considerations.

For help with any criminal law related matter please contact us on 0113 247 1477 or viamail at [email protected].

 

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New ‘Domestic Abuse’ Sentencing Guidelines

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A new domestic abuse sentencing guideline has been published today (22 February), giving courts up to date guidance that emphasises the seriousness of this offending.

What is domestic abuse?

There is no specific crime of domestic abuse – it can be a feature of many offences, such as assault, sexual offences or harassment. The guideline aims to ensure that the seriousness of these offences is properly taken into account when such offences are being sentenced and that sufficient thought is also given to the need to address the offender’s behaviour and prevent reoffending.

Are there existing guidelines?

The new guideline replaces a domestic violence guideline which was published in 2006. A great deal has changed since then in terms of societal attitudes, expert thinking and terminology. Guidance for courts was therefore in need of revision to bring it up to date. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’, to reflect that offences can involve psychological, sexual, financial or emotional abuse as well as physical violence.

When is the new guideline in force?

The guideline will apply to all offenders aged 16 and older sentenced on or after 24 May 2018.

How does this guideline change things?

The guideline identifies the principles relevant to the sentencing of cases involving domestic abuse, outlines how the seriousness of offences should be assessed and highlights other factors that should be taken into account.

It brings a distinct change in emphasis in relation to seriousness.

The previous guideline stated that offences committed in a domestic context should be seen as no less serious than those in a non-domestic context, whereas the new guideline emphasises that the fact an offence took place in a domestic context makes it more serious.

This is because domestic abuse is rarely a one-off incident, it is likely to become increasingly frequent and more serious the longer it continues and may result in death. It can also lead to lasting trauma for victims and their children.

For the first time, the guideline also includes a reference to abuse which is perpetrated through use of technology, such as email/text, social networking sites or tracking devices fitted to a victim’s car, since these are increasingly common methods by which domestic abuse can occur.

The guidelines recognise that these offences can affect people of all backgrounds and the guideline is also clear that abuse can occur between family members as well as between intimate partners.

Will anything else change?

Yes. In particular, there is now additional guidance on restraining orders, along with new guidance on Victim Personal Statements.

In relation to restraining orders, the guideline now includes additional guidance to assist the court with a renewed focus on keeping the victim safe, particularly for those who continue or resume their relationship with the offender.

The guideline further reminds courts to take any Victim Personal Statement (VPS) into account, but that where there is no VPS, this is not an indication of any lack of harm to the victim.

Sentencing Council member Jill Gramann said:

“Domestic abuse comes in many forms such as harassment, assault and sex offences. The increasing use of technology in offending has meant that it has also evolved in its scope and impact. The new guideline will ensure that courts have the information they need to deal with the great range of offending and help prevent further abuse occurring.”

What factors will a court take into account?

The following list of non-exhaustive aggravating and mitigating factors are of particular relevance to offences committed in a domestic context and should be considered alongside offence specific factors.

Aggravating Factors

  • Abuse of trust and abuse of power
  • Victim is particularly vulnerable (all victims of domestic abuse are potentially vulnerable due to the nature of the abuse, but some victims of domestic abuse may be more vulnerable than others, and not all vulnerabilities are immediately apparent)
  • Steps taken to prevent the victim reporting an incident
  • Steps taken to prevent the victim obtaining assistance
  • Victim forced to leave home, or steps have to be taken to exclude the offender from the home to ensure the victim’s safety
  • Impact on children (children can be adversely impacted by both direct and indirect exposure to domestic abuse)
  • Using contact arrangements with a child to instigate an offence
  • A proven history of violence or threats by the offender in a domestic context
  • A history of disobedience to court orders (such as, but not limited to, Domestic Violence Protection Orders, non-molestation orders, restraining orders)

 Mitigating Factors

  • Positive good character – as a general principle of sentencing, a court will take account of an offender’s positive good character. However, it is recognised that one of the factors that can allow domestic abuse to continue unnoticed for lengthy periods is the ability of the perpetrator to have a public and a private face. In respect of offences committed within a domestic context, an offender’s good character in relation to conduct outside these offences should generally be of no relevance where there is a proven pattern of behaviour
  • Evidence of genuine recognition of the need for change, and evidence of obtaining help or treatment to effect that change

Will I get a longer sentence?

A spokesperson for the Sentencing Council commented:

‘Overall, it is likely that there will be an increase in sentence severity as a result of the introduction of the guideline, however, the guideline emphasises the need to consider the most appropriate sentence to prevent further reoffending and protect victims, which may be a community order.’

How we can help

Many people feel that sentencing is increasingly a mechanistic process, with a danger that guidelines will be rigidly stuck to, and the individual considerations of defendants either ignored or played down. However, case law over the last few years emphasises that courts should be cautious to ensure that this does not happen. All of our advocates are experienced in presenting the best mitigation possible to courts, ensuring the best possible outcome.

To discuss your case contact us on 0113 247 1477, or via email at [email protected].

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