But I had no choice!

Posted on:

There is a defence in law known as necessity or duress of circumstances. It can be very difficult to demonstrate and will only apply in unusual and extreme circumstances. It is used to describe a situation where someone is forced by the demands of the situation to act unlawfully, and where a worse situation was avoided by acting in this way. This defence is not a reference to self-defence which is a quite separate defence.

 

What do I need to demonstrate?

You will need to show that you only acted for as long as was necessary. In a driving case where you need to escape a dangerous situation, for example, when you are over the alcohol limit, you must stop as soon as the danger has been averted. If you carried on driving, you would not have a defence.

You must be able to demonstrate that no other action could be taken, that there was genuinely a greater evil that was being avoided by behaving in the way that you did and that your behaviour did not go beyond what was absolutely necessary.

 

What if I have been threatened?

Sometimes a person will say that he committed an offence out of fear for his personal safety or that of someone else, because of threats that have been made.

The key point is for there to be clear and close danger, and the threat of serious injury or death. Threats to cause damage to property is unlikely to constitute a threat serious enough to provide a defence.

If there is a large gap in time between threat and offence, where a person could have gone to the police but did not, that would not be acceptable.

 

Gangs and criminality

The defence will often occur in the context of gang violence or owing money to loan sharks due to drugs. The suggestion here is that the defence would be unavailable to those who, having entered those worlds voluntarily, understood how violence was used as a means of securing objectives.

In relation to gang membership the court of appeal has ruled (Sharp [1987] QB 853):

“… where a person has voluntarily, and with knowledge of its nature, joined a criminal organisation or gang which he knew might bring pressure on him to commit an offence and was an active member when he was put under such pressure, he cannot avail himself of the defence of duress.”

As always though, the law on this point is very complex, so always seek legal advice.

In Howe [1987] AC 417 the court expressed the test in the following terms:

“Was the defendant, or may he have been, impelled to act as he did because, as a result of what he reasonably believed [the threatener] had said or done, he had good cause to fear that if he did not so act [the threatener] would kill him or … cause him serious physical injury? (2) If so, have the prosecution made the jury sure that a sober person of reasonable firmness, sharing the characteristics of the defendant, would not have responded to whatever he reasonably believed [the threatener] said or did by taking part [in the offence].”

 

Does it apply to all offences?

Duress can never be a defence to murder or attempted murder, but strangely it may be a defence to conspiracy to murder (Ness [2011] Crim LR 645).

The potential harshness of this rule can be illustrated by the case of Wilson [2007] 2 Cr App R 411, where a 13-year-old boy, powerless to ignore the instruction of his father, was unable to advance the defence at trial.

It is thought to potentially apply to all other offences.

 

What about using cannabis for medicinal purposes?

There is no defence of necessity or duress available for using cannabis for medicinal purposes. There have been many cases on this point and in 2005 the courts comprehensively rejected any such argument, stating that it fell well outside of the ambit of duress. It may however amount to mitigation.

 

How can we help?

The defence of duress and necessity is complicated, this article is a basic overview only. It is vital, therefore, to obtain expert legal advice and representation. Please contact us on 0113 247 1477 or email us at [email protected].

Drugs Importation

Posted on:

It is common for officers at airports and other ports of entry to intercept people carrying controlled drugs in their luggage, clothing or inside their bodies on behalf of suppliers in foreign jurisdictions. The colloquial term for such people is ‘mule’. They may have been pressured into carrying the drugs or have done so for a fee, or both.

On occasion large quantities are found, but sometimes it is merely the leftovers from a holiday or business trip abroad, maybe at a location where drug use is more widely tolerated by law enforcement.

Committing this offence can however result in severe consequences.

 

The Crime

Drugs are brought into the jurisdiction in a number of supposedly ingenious ways. Cocaine may be moved in its liquid form while disguised as something else. Human carriers may swallow a number of pellets containing drugs of different kinds. Naturally, the police and associated organisations are frequently uncovering these methods as they arise, resulting in those who run the gauntlet being charged and sent to prison for a significant term despite initially thinking they have outwitted their opponents.

 

The Law

The underlying offence is breaching the prohibition on the importation and exportation of controlled drugs created by section 3 of the Misuse of Drugs Act 1971. This prohibition is paired with the substantive offence which is contained in section 170 of the Customs and Excise Management Act 1979.

 

Sentencing

Various factors will alter the sentence imposed upon someone who either pleads guilty or is found guilty of this offence. These include the role played by the individual in the activity, the amount and character of the substance in question and (as with almost every offence) their level of co-operation with the police.

The sentences here are generally heavy, prison almost always follows for even the smallest quantity of drug, and sentences of 10 – 20 years, or more, are common where the quantity is large.

There are however a large number of factors that might reduce the seriousness of the offence or provide valuable mitigation – it is essential that a solicitor explore these on your behalf.

 

Penalties

The maximum penalties for this offence vary depending on the type of drugs in question:

–    Class A, life imprisonment;

–    Class B and C, 14 years’ imprisonment;

 

Case Studies

In Gregory [2012] EWCA Crim 649, the appellant’s sentence of imprisonment was reduced from 8 years to 6 years as the original sentence did not sufficiently reflect the appellant’s relatively minor role and the fact that he believed he was carrying cannabis rather than cocaine.

Conversely, the appellant in Burns [2009] EWCA Crim 1123 received an increased sentence upon a reference by the Attorney-General, from 8 years to 14 years’ imprisonment, to better reflect the fact that he had abused his professional role as a distribution supervisor by allowing cocaine importations.

There is a comprehensive sentencing guideline that Judges use in order to decide the sentence.

 

How we can help

If you want to discuss alleged offences relating to the importation of controlled drugs, please contact us on 0113 247 1477 or email us at [email protected].

Such offences are always serious, and expert representation at the earliest stage is highly desirable, particularly if you may have acted under duress and have the basis of a defence in law. Sadly, we see many already very vulnerable people caught up in drug importation – it is essential that your story is told.

Getting Tough on Public Disorder

Posted on:

The Sentencing Council, which is the body responsible for setting sentencing guidelines in England and Wales, has today published proposed new guidelines in respect to public order offences.

 

What offences are covered?

The guidelines will apply to the following offences, all of which are to be found in the Public Order Act 1986:

  • Riot
  • Violent disorder
  • Affray
  • Threatening or provocation of violence and the racially or religiously aggravated counterpart offences
  • Disorderly behaviour with intent to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
  • Disorderly behaviour causing or likely to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
  • Offences relating to stirring up racial or religious hatred and hatred based on sexual orientation

 

When will the guidelines come in to force?

The proposed guidelines are being consulted upon, so not until the end of this year at the earliest.

However, what we tend to see is that judges look at consultation guidelines, even when they are not supposed to. It makes sense therefore that we keep a close eye on sentencing in this area of law.

 

What are the main changes?

These offences can vary greatly in their nature and in their seriousness. For example, affray, which covers the use or threats of violence which would make someone fear for their personal safety, may involve serious or sustained violence or a less serious incident where no one is injured.

The guidelines aim to set out a clear approach to sentencing that covers the main factors that should be taken into account in assessing the culpability of the offender and the harm they caused. For example, an offender with high culpability in the riot guideline may have used petrol bombs or firearms, been a ringleader in instigating violence or have been instrumental in escalating the level of disorder.

The guidelines also aim to encapsulate the wide-ranging harm that is caused by these offences. Individual members of the public may suffer physical injury, fear or distress, or damage to their property while business owners may suffer loss of livelihood and damage to their premises. Public disorder can inflict serious disruption and damage to local communities and police officers and other emergency workers may be attacked and injured. Incidents may also involve substantial costs to the public purse.

The guidelines also highlight other aggravating factors that would increase the seriousness of offences. This can include offenders inciting others to participate in violence, trying to prevent emergency services from carrying out their duties, causing injuries to police dogs or horses and using or possessing weapons.

Finally, the guidelines also take into account trends in criminality and a social climate which has seen a rise in hate crime offending. The Council considered that a guideline on public order would be incomplete if it did not cover racially or religiously aggravated public order offences and those which specifically address stirring up of racial or religious hatred or hatred based on sexual orientation.

 

Will sentences be longer as a result?

The Sentencing Council does not anticipate that sentence severity will increase, save for a couple of exceptions concerning fines.

However, while data exists on the number of offenders sentenced for public order offences, and the sentences imposed, there is a lack of data on the categories of seriousness of current cases. It is therefore difficult to establish how current cases would be categorised across the levels of harm and culpability in the draft guideline.

The fear, therefore, is that these new guidelines may result in tougher sentences being imposed.

 

How we can assist

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]

Request For Driver Information

Posted on:

It may be an offence to fail to provide information as the identity of a driver when you receive a written request to do so from (or on behalf of) the police. If convicted, you face a hefty fine and 6 penalty points.

 

How long do they have to make the request?

A request must normally be served within 14 days of the offence being committed. There is case law where because a postal strike delayed the mail and it was delivered after the 14-day period, the offence was not committed.

If you have any doubt as to whether the notice was served within the requisite time, please contact us for further advice. In some circumstances a valid request can be made after the 14-day period, so do not ignore a request simply because you believe it to be out of time – always seek legal advice.

 

How long do I have to reply?

From the date the notice is served you have 28 days to reply, or “as soon as practicable after the end of that period”.

 

Right against self-incrimination

A number of case have dealt with this issue and, put simply, it doesn’t matter, the requirement to identify the driver does not affect your human rights. The court has said “those who choose to keep and drive a car can be taken to have accepted certain responsibilities” and those include the obligation to provide information upon request as to the driver.

 

What if I really don’t know who was driving?

If you genuinely do not know who was driving, you may have a defence to an allegation of failing to provide driver information.

The defence is that you “could not with reasonable diligence have ascertained who the driver of the vehicle was”. You need, therefore, to make all reasonable enquiries to find out who the driver was, and you will still need to reply to the request, providing what assistance you can. Again, it is best to seek early legal advice as a recent case involving the former politician Lord Howard, has opened up a number of interesting legal arguments.

 

I did not receive the request and now I have been summoned, what do I do?

You may have a defence to the allegation. Please contact us for further advice.

 

What if I provide false information?

It can be tempting to name a spouse, or even someone abroad, in the hope of avoiding penalty points. To do so would amount to perverting the course of justice – which almost always results in a prison sentence. So, don’t do it.

 

Companies

It is a defence to show that there was no record kept of the driver and that the failure to keep a record was reasonable. The notice can be served by sending it to a secretary or a clerk, at the registered or principal office. It may seem obvious, but a company cannot be given penalty points, so the penalty here would be a fine.

In certain circumstances proceedings can also be brought against company directors, so a company cannot be used as a shield against prosecution for this offence. If your company operates a company carpool it would be wise to ensure that you have robust procedures in place in order to track vehicle usage.

 

Legal aid

Public funding may be available for such a case, so please contact us for further information.

 

How we can assist

The law concerning requests for driver information can be complicated. This article is intended to give only a very brief overview of the issues involved.

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]

The Parole Board – A Period of Rapid Change

Posted on:

Following the Parole Board decision to release John Worboys, the taxi driver rapist, there has been a review of its functions, in particular a review of Rule 25 of the Parole Board Rules 2016 that prevented the Parole Board disclosing any information relating to its hearings.

That rule was found to be unlawful in a judicial review of the decision in Worboys.

The government has now published the Parole Board (Amendment) Rules 2018 as an initial and urgent step to remove the blanket ban on disclosure of information. These new rules will come into force on the 22nd May 2018. The rules are not retrospective and will not apply to decisions made before that date.

The Parole Board will now be able to make summaries of their decisions, to release or not to release a prisoner, available for the first time.

 

Decisions

The decisions referred to are those made by a single member of the Parole Board under Rule 14(7) or under Rule 24 of the Parole Board Rules 2016.

 

Circumstances requiring release of a summary

If the Parole Board is informed that a victim wishes to receive a summary, then it can only be withheld in exceptional circumstances.

If any other person wishes to receive a summary they may do so if disclosure is justified in the interests of open justice.

There is a discretion to disclose further information outside of the summaries to victims and other persons. There will be protections in place to protect the privacy of victims and to protect the candour and safety of witnesses.

 

Victim

A victim is defined in the rules as someone who is participating in the Victim Contact Scheme in respect of a prisoner who is party to the proceedings.

 

Further review

A consultation has now been launched in respect of a proposal for a new mechanism to allow challenges of a Parole Board decision without the need to resort to judicial review proceedings.

The government is seeking views on the proposed parameters for and operation of the new reconsideration process. This is in respect to which types of decisions should be reconsidered; who could apply for reconsideration; on what basis a decision should be reconsidered and how to make the process transparent whilst protecting panel members, victims and others.

The Parole Board has welcomed the change to allow more transparency, something which it had previously called for. It has urged the need to keep its independence whilst acknowledging that there may need to be more fundamental changes to the system to ensure that its status, structure and processes are fit for any new responsibilities that may arise.

The Parole Board would resist public hearings due to disclosure of certain information and fears that it may not encourage candour from the prisoner and witnesses. It would also resist the provision of specific information that may disrupt prisoner resettlement, and the release of medical reports.

This is obviously an ongoing review and fast developing area of prison law. Nick Hardwick, the former head of the Parole Board who was forced out following the Worboys case, commented on the new rules in these terms:

‘As suspected. Not retrospective and the minimum required by the High Court judgment. Risks creating all the challenges of openness without satisfying anybody. Worst of both worlds I fear.’

 

How we can assist

We will be watching closely to consider the way in which cases are presented and any impact upon clients.

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].

Will My Name Appear in Newspapers?

Posted on:

If you are over 17 years of age, the easiest answer is that it could. These days, press reporting via social media can happen very quickly and it is often one of the things not thought about by those facing criminal proceedings.

 

Youth Court

Anyone aged 17 or under will generally first appear in the Youth Court. There are strict rules that prevent the publication of the name, address, school or any other matter likely to identify a person under 18 who is a victim, witness or defendant in a youth court. This restriction can be lifted in certain circumstances; we can advise you and oppose any such application on your behalf if appropriate. If a youth appears in an adult court the prosecutor will apply for an order to prevent the naming of a youth. In civil proceedings, such as for an anti-social behaviour injunction, reporting restrictions do not apply.

 

Anonymity

There is an automatic reporting restriction that prevents the identification of any teacher who is alleged by a pupil at the same school to have committed a criminal offence against the pupil. This restriction ends when the teacher is charged or summonsed to court and can be varied or lifted.

Victims of sexual and a limited number of other offences have lifetime anonymity.

Reports of certain hearings at court may only include the name of the defendant and the offences he faces. This includes allocation and sending hearings in the Magistrates’ Court, preparatory and pre-trial hearings in the Crown Court. Once a trial is underway, you can expect to see reports of the entire proceedings, unless a Judge orders otherwise.

 

Discretionary reporting restrictions

Although an application may be made to restrict reporting of a defendant’s name any discretion has to be considered with care, such restrictions are not common.

An example of where an application may be appropriate is for a defendant who is in the witness protection programme (used recently in relation to John Venables, the killer of James Bulger).

For proceedings that are not in the youth court, there is a discretion to impose reporting restrictions in respect of a victim, witness or defendant under the age of 18. The court would need to be satisfied that the welfare of the child outweighed the strong public interest in open justice. There is a similar discretion for adult witnesses if their evidence would suffer if they were named as a witness.

 

Will the press be in Court?

Members of the press can sit in on hearings in any court, including the youth court, unless they are specifically excluded, but this would only be in rare and particular circumstances.

The general principle is that justice should be open and administered in public. Even if the press is not present, this does not mean that your case will not be reported.

Local reporters sell stories to other newspapers, so do not assume that just because you appear before a court away from where you live, your own local press will not be aware of it.

 

How we can assist

The law in respect of reporting restrictions is complicated, and breach of a restriction is a criminal offence for individuals as well as members of the press. This article is intended to give only a very brief overview of the issues involved.

Press reporting is one of the issues that you need to consider early on in the criminal process, particularly if your case is likely to attract publicity.

You will need to consider the effect that the proceedings may have on others, particularly children, and how you might deal with that.

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].

Another Fine Mess

Posted on:

In the crown court, while a fine is not the most common punishment meted out, when they are imposed they tend to be very large.

 

Do I have to pay the fine all at once?

Sometimes a court will order full payment (and may give a period of time for this to be completed), but in many cases, the court can order that you pay in instalments, usually weekly or monthly.

You will not be given time to pay (and therefore may be sent to prison forthwith if a fine isn’t paid) if:

(a) in the case of an offence punishable by imprisonment, you appear to the judge to have sufficient means to pay forthwith;

(b) it appears to the judge that you are unlikely to remain long enough at a place of abode in the UK to enable the payment of the fine to be enforced by other methods; or

(c) on the occasion when the fine is imposed, the judge sentences you to an immediate prison sentence, custody for life, or detention in a young offender institution for that or another offence, or so sentences you for an offence in addition to forfeiting his recognisance, or you are already serving a sentence of custody for life or a term of imprisonment or detention.

 

Setting a default period

Section 139 of the Powers of Criminal Courts (Sentencing) Act 2000 requires a court to fix a period of imprisonment in default.

Imprisonment in default is an extra term of imprisonment that you might receive if a fine is not paid:

“…the purpose of ordering a sentence of imprisonment in default is designed to ensure, so far as possible, that the defendant found to have realisable assets in the amount […] ordered, should pay that amount and should obtain no advantage by refusing to do so. That authority stems not only from previous cases but also from the statutory provisions themselves.” (R v Smith [2009] EWCA Crim 344).

The maximum term is dependent on the size of the fine imposed:

 

An amount not exceeding £200 7 days
An amount exceeding £200 but not exceeding £500 14 days
An amount exceeding £500 but not exceeding £1,000 28 days
An amount exceeding £1,000 but not exceeding £2,500 45 days
An amount exceeding £2,500 but not exceeding £5,000 3 months
An amount exceeding £5,000 but not exceeding £10,000 6 months
An amount exceeding £10,000 but not exceeding £20,000 12 months
An amount exceeding £20,000 but not exceeding £50,000 18 months
An amount exceeding £50,000 but not exceeding £100,000 2 years
An amount exceeding £100,000 but not exceeding £250,000 3 years
An amount exceeding £250,000 but not exceeding £1 million 5 years
An amount exceeding £1 million 10 years

 

 

Will a court always set the maximum term in default?

The period in default will depend on the amount of fine and where it falls within the banding. So, a fine of £55,000 would probably attract a default period nearer 18 months than two years. But this is not an arithmetical exercise.

 

What happens if I do not pay?

If you wilfully refuse to pay the fine, and all other enforcement options have been exhausted, you will be ordered to serve the default term in prison.

It is therefore very important that you make contact with your solicitor if your financial circumstances change and you are unable to pay a financial penalty. It is always better to try and resolve difficulties earlier than wait for enforcement proceedings to commence.

 

I would sooner serve the time than pay the fine, is that possible?

Yes, and no!

If you do not pay, then you will go to prison.

However, this does not extinguish the penalty; if the authorities later find that you have the means to pay the fine, action can still be taken to recover the monies.

 

How we can assist

The law concerning non-payment of fines and other financial penalties is complicated. This article is intended to give only a very brief overview of the issues involved.

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].

Sentencing Is Its Own Risky Business – The Hidden Penalty

Posted on:

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?

Posted on:

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

Posted on:

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].