“I’m Going to Kill You!”

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How many times have you said something similar?

 

Is it an offence?

If you make such a threat, intending that another would fear it would be carried out, you commit an offence of making threats to kill. The offence is under section 16 of the Offences Against the Person Act 1861. Even though the legislation is very old it is still a commonly used charge. The key part of the offence is that you intend another to fear that the threat would be carried out.

 

Is there a defence?

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

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

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

 

What if the threat is made to someone else?

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

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

 

What sentence can I expect?

The offence can encompass a wide range of offending, in sentencing the court will look at a variety of factors, for example – was there a weapon, was it a threat in the heat of the moment, the impact on the victim, repeated threats or a single calculated threat.

An example is a case involving threats made to an arresting officer, the offender knew detail about the officer’s home life which added weight to the threats. He was sentenced to 2 years imprisonment.

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

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

 

How can we help?

If you have been charged with an offence or are under investigation by the police please contact our experienced team for further advice, on 0113 247 1477 or email us at [email protected].

Taking Offences into Consideration – The Issue of TICs

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What are TICs?

TICs are offences to be taken into consideration at the time of sentencing.

 

When would I be asked about them?

If you have pleaded guilty to an offence or are expected to, or are due to be sentenced, you can admit other offences and ask for them to be taken into consideration upon sentence.

The police may also approach you and ask if you want to accept any TICs. It is crucial that you obtain legal advice as acceptance of TICs does have consequences and there are risks.

 

What happens?

You will be spoken to under caution, if you do admit other offences and the police and prosecution agree, a schedule of the offences will be prepared and placed before the court.

It is then for the court to decide whether or not to take them into account.

On the positive side, the court will consider the fact that you have assisted the police and shown a genuine desire to “wipe the slate clean”. Any consideration taken of the TICs will result in a difference to your sentence, but this may not be as much as if you were sentenced separately for that offence.

On the negative side, the acceptance of TICs may result in a greatly increased sentence as they are treated as an aggravating feature, especially if there is a large number. The total sentence imposed has to reflect all of the offending behaviour. You can also be ordered to pay compensation in relation to TICs. Also, you will never know if those offences would ever have been linked to you, so you may be admitting more than could ever be proved. This is in effect a simple trade off, peace of mind versus looking over your shoulder wondering whether the past will catch up with you.

If you wish to wipe the slate clean it is important to ensure that all outstanding offences are admitted, otherwise you may not receive any discount if a future prosecution is brought. In the recent case of Murray [2018] EWCA Crim 1252 the court observed (citing an earlier case of McLean [2017] EWCA Crim 170):

“It seems to us however that this appellant must have made a conscious choice not to disclose the July 2014 matter in the hope that it would go undetected. In those circumstances he cannot now claim to be sentenced as if both matters should have been dealt with together in January 2015. To permit that to happen at this stage would be unjust to the public interest in giving the appellant an undeserved, uncovenanted bonus. This case therefore is a salutary illustration of the benefits which can accrue to offenders from making voluntary admissions of additional offending and the risks that they run if they choose not to do so.”

 

What sort of offences can be considered?

Similar offending is likely to be accepted as a TIC. An offence is unlikely to be accepted as a TIC if –

  • it is an admission to an offence more serious than the one you have pleaded guilty to;
  • it is an offence that would attract disqualification or penalty points on conviction;
  • if it is an offence committed in breach of an earlier sentence;
  • where it is an offence completely dissimilar to the one charged; or
  • where it is a specified offence when the charged offence is not.

 

If I admit further offences will they definitely be TICs?

Not necessarily. Admissions in the circumstances above may lead to further criminal charges being brought against you, this is why legal advice is important.

 

How can we help?

Any advice as to whether to accept TICs or not is likely to be dependent on both your personal circumstances and the offences involved. We have vast experience in providing such tailored advice, to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Minimum Sentences

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For certain offences, there are minimum terms of imprisonment that a court must impose, absent exceptional circumstances (or it being unjust), these sentences can be automatically imposed even for a first-time offender, or dependent on certain previous convictions. It is worth noting that the actual sentence may be far in excess of the minimum, dependant on the facts involved.

 

What offences have minimum sentences and what are the sentences?

Burglary

If you have two or more convictions for dwelling house burglary, committed and sentenced on separate occasions, and then commit a third offence you face a minimum sentence of three years imprisonment.

Firearms

Certain firearms offences carry a minimum sentence of 5 years for an adult, or 3 years for a youth aged 16 or 17, in the absence of exceptional circumstances. This includes first time offenders.

The offences include possession of specific firearms as well as possession of a firearm with intent to cause fear of violence or intent to injure, carrying a firearm in a public place, use of a firearm to resist arrest. It also includes possession of any firearm disguised as another object. This includes, for example, a stun gun disguised as a mobile phone or a torch.

Weapons

As of 17th July 2015, possession of an offensive weapon or a blade, on a second occasion, will carry a minimum sentence of 6 months for an adult, or 4 months for someone aged 16 or 17. The sentence must be imposed unless it is unjust in all the circumstances.

Drugs

A minimum 7-year sentence applies to Class A drug trafficking offences in the case of an adult where there have been 2 previous, separate convictions for class A drug trafficking offences, unless it is unjust to impose. The offences include production, supply, possession with intent to supply, importing or exporting, or any attempt or conspiracy to commit these offences.

 

Does it have to be imposed?

The only reason why a minimum sentence would not be imposed, is if it is “unjust” to do so, or there are “exceptional circumstances” (this depends on the actual offence).

Unjust can refer to the circumstances of the offender, the offence or the previous offences where convictions are relevant. Credit for a guilty plea can also still be applied although it may not be the usual one third reduction for full credit.

 

How can we help?

It is vitally important that you receive expert advice in respect of plea and potential sentence. For example, a “timely” guilty plea to a third drugs offence could mean the difference between a sentence of 7 years and one of 5 years and 7 months. It may be that you have exceptional circumstances to argue for a lesser sentence.

There is a substantial body of case law dealing with mandatory minimum sentences, and it is vital that this is considered in detail and applied to the facts of your individual case.

We have extensive experience of providing such advice, please contact us on 0113 247 1477 or email us at [email protected].

Targeting Drink Drivers

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The government has announced its intention to use new roadside breathalysers, in a move that could see a further 6,000 convictions per year for drink driving.

At the moment, the breath test procedure is in 2 stages, a person who tests positive at the roadside will be arrested and taken to a police station for a further test to be administered. This is known as the ‘evidential test’ and is the one that forms the basis of any prosecution decision.

The gap in time between the first positive breath test and the one administered at the police station may be significant enough to ensure that a person blows a negative reading – this is due to falling alcohol levels over time (although in some cases the reverse can also happen).

While ‘back calculation’ laws are available, the evidence base is such that they are seldom used for this scenario. Arguably, therefore, some drink drivers go free.

The legislation allowing for a definitive roadside evidential breath test procedure is already in place, but today the government has announced a competition aimed at device manufacturers, with the aim of ensuring that suitable devices are approved and in use by 2020.

Around 460,000 breath tests are conducted each year, with some 59,000 people providing a positive reading.

Approximately 6,000 people provide a positive reading at the roadside but later are found to be under the limit when tested at the police station – this change will see those people prosecuted.

In many instances these will be people who have ‘gambled’ on the quick lunchtime drink or have not allowed quite enough time to sober up from the night before.

The changes will also reduce the scope for so-called ‘loophole defences’, popular due to the complexities of the police station procedure. It is expected that decades of case law will become redundant once the new devices have been rolled out. Experience tells us however, that as one legal challenge closes, another pops up!

The penalties for drink driving are severe, with minimum periods of disqualification, high financial penalties and punishing insurance premiums for many years to come. In many cases, offenders face the loss of employment. ‘One for the road’ often comes at a very high price.

 

How can we assist?

We are experts in all aspects of drink and drug driving law. This is one of the most complex areas of criminal law, and early advice should be sought in order to achieve the best outcome. Please contact us on 0113 247 1477 or email us at [email protected].

Getting Tough on Breach of Court Orders

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Today (7 June 2018), the Sentencing Council has published new guidelines for judges and magistrates for when they are sentencing offenders who have breached court orders. The guidelines provide a clear approach which will mean a tightening up of the way courts deal with offenders who have not complied with a wide range of orders such as suspended sentence orders, community orders, restraining orders and sexual harm prevention orders.

It is the first time there have been comprehensive guidelines setting out a consistent approach for courts to use and they will help ensure that if an offender breaches a court order, sentencers impose appropriate penalties according to the seriousness of the breach.

What breaches are covered by the guideline?

  •    Breach of a Community Order
  •    Breach of a Suspended Sentence Order
  •    Breach of Post Sentence Supervision
  •    Failing to Surrender to Bail
  •    Breach of a Protective Order (restraining and non-molestation orders)
  •    Breach of a Criminal Behaviour Order and Anti-Social Behaviour Order
  •    Breach of a Sexual Harm Prevention Order and Sexual Offence Prevention Order
  •    Failing to Comply with Notification Requirement
  •    Breach of Disqualification from acting as a director
  •    Breach of Disqualification from keeping an animal

 

When does the guideline come in to force?

The guideline will come into effect in courts on 1 October 2018.

 

Is there a change in approach?

The guidelines will also tighten up courts’ approach to dealing with these breaches. Courts are required to follow guidelines and these guidelines closely reflect legislation and define more clearly appropriate court responses to breaches.

For example, in relation to suspended sentence orders, legislation states that they must be activated – i.e. the offender will be sent to prison – in the event of a breach unless it would be unjust to do so. The guideline gives clearer guidance on this consideration, and offenders will now not get opportunities to avoid their sentence being activated. For activation to be considered to be unjust, there would need to be new and exceptional circumstances – not present at the time the order was imposed – that prevented them from complying with the order. This might involve for example the offender taking on caring for a disabled relative which greatly affects their ability to comply with an unpaid work requirement.

The guideline also covers breaches of orders imposed to prevent particular behaviour or protect individuals or groups from it, such as sexual harm prevention orders and restraining orders. The guidelines prompt courts to look at an offender’s motivation and intention in committing a breach to assess the seriousness of the breach. The guidelines also instruct courts to look at any harm caused, and for the first time in a guideline, the risk of harm being caused.

Including a focus on risk of harm for such breaches helps ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public, without any actual harm needing to have occurred. This could include for example a sex offender who fails to comply with notification requirements with the intention of evading detection in order to commit further offences.

Sentencing Council member Julian Goose said: “Court orders are there to protect individuals and the wider public from particular types of offending or continuing criminal behaviour by offenders. Making sure that offenders comply with court orders is crucial in reinforcing public confidence in sentencing. Where offenders do not comply, the public have a right to expect that this is properly addressed by the courts. We are giving courts clear guidance on what action should be taken against those offenders who ignore court orders so that they are dealt with robustly and consistently.”

 

Will more people go to prison?

The Sentencing Council conducts research to assess the impact of its guidelines on future sentencing practice. This is a difficult task and the findings are subject to many caveats, however, the following pattern emerges:

Protective orders: ‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. There are two exceptions which may lead to higher sentences for some breaches of a restraining/non- molestation order.’

Criminal Behaviour Order: ‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. The exception is for the most serious breach cases that fall in categories A1, A2 and B1, where there has been an extension to the category ranges, and also at the bottom of the distribution where there may actually be a reduction in sentence severity.’

Sexual Harm Prevention Order/SOPO: Insufficient data.

Breach of notification requirements: ‘A review of transcripts of cases has confirmed that current guidance is not considered adequate by sentencers to address offences falling within the top end of seriousness. The new guideline is more prescriptive and as a consequence it is possible that there may be more sentences at the top end of the guideline range.’

Suspended Sentence Orders: ‘…it has not been possible, (and it is not advisable), to calculate any informative or realistic estimate of the guideline on sentencing practice or the subsequent impact on prison or probation services.’

Breach of disqualifications: ‘…any potential impact would be minimal.’

Failing to surrender to bail: ‘The new wording and format of the guideline regarding consecutive sentences is considered to be in line with the existing guideline, and therefore is not anticipated to have an impact on prison or probation resources.’

In our experience sentencing guidelines often do lead to unintended rises in sentence length, possibly due to a lack of understanding, something our advocates are acutely aware of.

 

How can we help?

If you need further advice in respect of any potential criminal matter please contact us on 0113 247 1477 or email us at [email protected].

Social Media Crime

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With the ever-growing popularity of social media websites such as Facebook, Twitter and Instagram it is important to take a step back and consider your use of them. You need to make sure that you and your children not only control the personal information that is put onto social media but also your behaviour on such sites.

 

Control your information online

Be aware of the potential for cyber-enabled fraud. Fraudsters can use information obtained from such sites to commit identity theft. Telling everyone about your forthcoming holiday may also be an advance initiation to a burglar – it is surprising how much information we reveal about ourselves over a period of time.

If you have children you also need to be aware of the dangers of persons contacting them and then grooming your child, building an emotional attachment to them with a view to a meeting for the purpose of sexual abuse or exploitation.

Many online games allow for messaging between users – do you know who your child is talking to?

 

Control your behaviour

Many offences can be committed in the heat of the moment, or drink, the typing of a comment that cannot then be taken back.

Trolling, or sending abusive messages online, can be an offence under the Malicious Communications Act 1988 and the Communications Act 2003, with stiff penalties in both cases.

Revenge porn, for example publishing intimate images of an ex-partner without their consent, is now a criminal offence and often results in a prison sentence.

What may seem to be banter may actually be offensive, what may be intended to be seen by a few could be seen by thousands.

A fake social networking profile or account may also be a criminal offence in certain circumstances.

 

What about freedom of speech?

This is not an absolute right and may be restricted where necessary and proportionate.

 

Think it couldn’t happen to you?

Remember the Robin Hood Airport case? A young man made what he intended to be a jokey comment about blowing up the airport if he couldn’t make his flight due to adverse weather.

He found himself in court, was convicted by magistrates, and again on appeal before finally his conviction was quashed at a second High Court appeal. By then he had already lost his job as a consequence of the conviction.

 

What are the consequences?

Social media has even recently been blamed for an increase in knife crime as it can amplify the effect of violence. Accordingly, online offences are being dealt with seriously.

Last year the Crown Prosecution Service updated its policy statements in order to take account of the increase in online abuse, saying that individuals need to appreciate they can’t go online and press a button without any consequences.

At the other end of the spectrum, saying something unpopular or unpleasant is not unlawful, people’s sensitivities need to be balanced with free speech, and we see reported a number of cases that cause us concern.

This tide of sensitivity could result in people pleading guilty when in fact they are not – always take early advice.

 

How can we help?

If you need further advice in respect of any potential criminal matter please contact us on 0113 247 1477 or email us at [email protected].

Unlawful Eviction

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So called ‘Rogue landlords’ are frequently in the news for allegedly charging tenants too much money, refusing to release a deposit or evicting tenants unlawfully.

 

What is meant by ‘unlawful eviction’?

The statutory starting point is the Protection from Eviction Act 1977

Section 1(2) states when someone is guilty of this offence:

“If any person unlawfully deprives the residential occupier of any premises of his occupation of the premises or any part thereof, or attempts to do so, he is guilty of an offence unless he proves that he believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”

 

Elements of the offence and key players

The terms ‘eviction’ and ‘deprivation’ have been interpreted in a relatively intuitive manner by the courts, a key factor being the lack of access.

In Yuthiwattana (1984) 80 Cr App R 55 the court looked at differing levels of access deprivation and stated:

‘In our view “permanency” goes too far. For instance, if the owner of the premises unlawfully tells the occupier that he must leave the premises for some period, it may be of months or weeks, and then excludes him from the premises, or does anything else with the result that the occupier effectively has to leave the premises and find other accommodation, then it would in our view be open to a jury to convict the owner under subsection (2) on the ground that he had unlawfully deprived the occupier of his occupation. On the other hand, cases which are more properly described as “locking out” or not admitting the occupier on one or even more isolated occasions, so that in effect he continues to be allowed to occupy the premises but is then unable to enter, seem to us to fall appropriately under subsection (3)(a) or (b), which deal with acts of harassment.’

Someone does not necessarily have to be a tenant to be a residential occupier; it is possible to gain protection as a contractual licensee: Thurrock Urban District Council v Shina (1972) 70 LGR 184.

 

But I had a good reason to deprive someone of their access, how do I show this?

If you are accused of unlawfully depriving someone of access to their property in the manner described above, it is for you to prove that you “believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises.”

This would only avail a landlord of a defence where the tenant had removed all physical signs of possession from the premises and where the landlord had good reason to believe that he would not be returning. The reason for this is that “possession” is synonymous with “occupation”, meaning something more than physical presence.

Before possession can be obtained of residential premises, in all cases other than where there has been voluntary vacation, there must be a court order. This will also be the case for tenants protected by the Rent Acts or Housing Act 1988, as well as for restricted contracts where a licence only is granted.

 

What are the penalties for this offence?

The offence carries a maximum punishment of two years’ imprisonment and/or an unlimited fine and can be tried in both the magistrates’ and crown courts.

 

How can we help

If you are concerned about allegations of unlawful eviction or other alleged offences relating to landlords and tenants, then please contact us on 0113 247 1477 or email us at [email protected].

Environment Agency Penalties

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Although some breaches of environmental law amount to criminal offences, not all do.

There are a wide range of potential penalties that are quite different to those usually faced for standard criminal offences. Even where a criminal offence has been committed, court action and all that it entails can very often be avoided.

It is therefore vital that you take legal advice at the outset of any Environment Agency investigation, as we are best placed to ensure you exit with the least possible penalty in the event that you have committed any wrong.

Prosecution is said to be a last resort, and any enforcement action has to be proportionate and appropriate. This article is intended as a guide to the penalties that are available.

Criminal and offence specific responses

Warning – this will set out the offence believed to have been committed, the corrective action expected to be taken within a set time and what will happen if action is not taken.

Formal caution – can be imposed where a prosecution could be commenced, the offender admits the offence and consents to be cautioned.

Prosecution fixed penalty – can be imposed for certain offences, if it is not paid a prosecution can follow.

Prosecution – the Agency must be sure there is a realistic prospect of conviction, and it is in the public interest to prosecute.

Civil sanctions

When the Agency decides to impose a civil sanction (except a stop notice) they will serve a notice of intent; provide an opportunity to make written representations within 28 days; consider any representations; make a final decision and notify you with concise reasons for the decision.

Compliance notice – to require the offender to come back into compliance or where advice has been given but not followed.

Restoration notice – a formal notice requiring the offender to put right any damage caused by an offence. Steps to take will be set out in the notice to rectify the situation within a set time.

Fixed monetary penalty – can be issued where advice has been given and not followed or for minor offences.

Variable monetary penalty – issued for more serious offences where it is not in the public interest to prosecute. This penalty may also be issued in conjunction with a compliance or restoration notice.

Stop notice – requiring an activity to be stopped immediately, it will set out action to be taken and will remain in force until the action is taken.

Enforcement undertaking – a voluntary offer by the offender to put right the effects of the offending behaviour. If accepted the offer becomes a binding agreement. If the offender complies then a prosecution cannot be taken.

How we can help

Not all penalties are available for all breaches or offences, and representations can be made to the Environment Agency about the most suitable penalty. We can assist you with those representations. Please contact us on 0113 247 1477 or email us at [email protected]

Problems with visual identification evidence

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A critical evidential problem for courts is how much weight to place upon identification evidence where that evidence is weak or based on a very brief encounter.

You would think that the usual rules apply regarding the jury’s verdict; if they are not sure that the defendant has been properly identified as the perpetrator then the correct conclusion is ‘not guilty’.

That is true to a certain extent but extra safeguards, known as the ‘Turnbull guidelines’, will come into operation in identification cases to act as a safeguard against placing too much weight on evidence of this type.

We know from our own life experience that identification evidence is often wrong.

 

When a direction is needed

Where the prosecution case rests wholly or substantially on identification evidence the judge must warn the jury about the dangers present. This warning will take the form of a prescribed direction given to the jury which describes the dangers of this type of evidence.

 

What direction will a jury be given?

A jury (or magistrates) will be told the following:

(1) there is a need for caution to avoid the risk of injustice;

(2) a witness who is honest and convinced in his own mind may be wrong;  

(3) a witness who is convincing may be wrong;  

(4) more than one witness may be wrong;

(5) a witness who is able to recognise the defendant, even when the witness knows the defendant very well, may be wrong.

 

The jury should be directed to put caution into practice by carefully examining the surrounding circumstances of the evidence of identification, in particular:

(1) the time during which the witness had the person he says was D (defendant) under observation; in particular the time during which the witness could see the person’s face;  

(2) the distance between the witness and the person observed;

(3) the state of the light;  

(4) whether there was any interference with the observation (such as either a physical obstruction or other things going on at the same time);

(5) whether the witness had ever seen D before and if so how many times and in what circumstances (i.e. whether the witness had any reason to be able to recognise D);  

(6) the length of time between the original observation of the person said to be D (usually at the time of the incident) and the identification by the witness of D the police (often at an identification procedure);

 

Any weaknesses in the identification evidence must be drawn to the attention of the jury, for example those arising from one or more of the circumstances set out above, such as:

(1) the fact that an incident was unexpected/fast-moving/shocking or involved a (large) number of people so that the identifying witness was not observing a single person;

(2) anything said or done at the identification procedure including any breach of Code D.

(3) whether there is any significant difference between the description the witness gave to the police and the appearance of D.

 

Evidence which is capable and, if applicable, evidence which is not capable of supporting and/or is capable of undermining the identification must be identified.

The jury may also use evidence of description, if they are sure that it comes from a witness who is honest and independent, as support for evidence of identification given by an/other witness/es.

Where more than one witness gives evidence of identification the jury should be told that they must consider the quality of each witness’ evidence of identification separately and must have regard to the possibility that more than one person may be mistaken. However, as long as the jury are alive to this risk, they are entitled to use one witness’ evidence of identification, if they are sure that that witness is honest and independent, as some support for evidence of identification given by an/other witness/es.

 

Consequences of missing or bad directions

Failing to provide a Turnbull direction when necessary or providing an insufficient one can cause a subsequent conviction to be rendered unsafe. The exact danger with identification evidence was highlighted in Bentley (1994) 99 Cr App R 342 where the Lord Chief Justice pointed out that one can feel not merely fairly confident but absolutely sure of seeing a friend or relative, only to discover that it happened to be a convincing lookalike.

 

Case studies

Other situations which seem analogous to the example encounter mentioned above may not be caught by the Turnbull provisions, such as the identity of a particular individual within a number of persons who are well-known collectively: Oakwell [1978] 1 All ER 1223.

Nor do the principles apply to picking out a particular object such as a car, though the judge may draw this to the jury’s attention for different reasons: Browning (1991) 94 Cr App R 109.

In the most serious cases of problematic identification evidence, a trial may simply have to be stopped.

This will most commonly occur where there is no evidence supporting someone’s purported identification of the wrongdoer, especially if the person making that identification cannot be absolutely sure of who it was (although even then there are rules in relation to what are known as ‘qualified identifications’).

 

How we can help

As you will have seen from the above article, which is in fact only a very short summary of the relevant principles, identification is one of the most complex evidential topics, and our expertise in this area is designed to ensure such evidence is tested to the limits.

If you have further questions about identification evidence, how the court protects against unreliable evidence of this kind and/or how this relates to your case, please contact us on 0113 247 1477 or email us at [email protected].

Stalking

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New offences of stalking (in addition to existing offences of harassment) were introduced in 2012. The offences are harassment which involves a course of conduct that amounts to stalking. There are two offences, stalking involving fear of violence and stalking involving serious alarm or distress.

 

What is stalking?

There is no strict definition, but the legislation lists a number of behaviours associated with stalking –

  • following a person,
  • contacting or attempting to contact a person by any means,
  • publishing material relating to a person or purporting to come from them,
  • monitoring a person’s use of the internet, email or communications,
  • loitering,
  • interfering with any property in the possession of a person,
  • watching or spying on a person.

The list is not exhaustive and nor is behaving in one of these ways automatically stalking, context is everything.

 

What must the prosecution prove?

  • That there is a course of conduct
  • which constitutes harassment, and
  • the course of conduct amounts to stalking.

Additionally, for the offence involving fear of violence it must be proven –

  • the conduct causes another to fear that violence will be used against him; and
  • which the defendant knows or ought to know will cause another to fear that violence will be used against him.

The test whether he “ought to know”, is whether a reasonable person in possession of the same information would think that the course of conduct would cause the other to fear violence.

It is an offence if conduct amounts to stalking and causes another to fear, on at least two occasions that violence will be used, or that the conduct causes serious alarm or distress, which has a substantial effect on a person’s day to day activities.

This could mean that they have to, for example, change a route they normally use, move home or change the way they socialise. It could also mean a change to a person’s physical or mental health.

 

Are there any defences?

It is a defence to show –

  • the course of conduct was pursued for the purpose of preventing or detecting crime;
  • the course of conduct was pursued under a rule of law;
  • that any conduct was reasonable

Additionally, for the violence offence it is a defence if the course of conduct was reasonable for the protection of the defendant or another, or for the protection of his or another’s property.

 

What sentence could I get?

For the basic offence of stalking the maximum sentence is six months imprisonment, for the offence causing fear of violence or serious alarm/distress the maximum sentence is 10 years imprisonment (for an offence on or after 2 April 2017; 5 years for offences prior to that date).

A restraining order to protect the victim from further contact can also be imposed, even if a defendant is found not guilty of the offence.

 

How can we help?

These are serious allegations and the law is complex, please contact us on 0113 247 1477 or email us at [email protected], for further advice and representation. As experienced defence lawyers we know that there is always another side to the story, let us tell that for you.