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Archive for the ‘News’ Category

Happy Birthday to the Human Rights Act

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The Human Rights Act is 20 years old this year. Its name is often used in vain, “it’s against my human rights!” or blamed for something that probably isn’t to do with the Act at all. The Act sets out the fundamental rights and freedoms to which everyone in the UK is entitled.

 

Where did the law come from?

The legislation was passed in 1998 to incorporate into UK law the European Convention on Human Rights. Before that, you may have had to go to the European Court of Human Rights in Strasbourg rather than a British court if you thought your human rights had been breached.

 

What rights are protected?

A wide range of rights are protected, these include:

  •    Right to life
  •    Freedom from torture
  •    Freedom from slavery
  •    Right to liberty and security
  •    Right to a fair trial, no punishment without law
  •    Respect for private and family life
  •    Freedom of thought, belief and religion
  •    Freedom of expression
  •    Freedom of assembly and association
  •    Right to marry and start a family
  •    Protection from discrimination

 

How is this relevant to criminal law?

The Act can have extensive application to criminal law; many underlying principles are supported by the protected rights. Most important is the right to a fair trial, and that there is no punishment without law.

An accused person is always innocent until proven guilty and has the right to hear the evidence against them.

Whilst some of these rights were of course already an integral part of English criminal law, the European jurisprudence has played an important part in developing this area of law.

Other protected rights can come into play, for example, freedom of speech and of assembly may become relevant in some public order offences. We have seen this utilised very well in a recent case involving protests in relation to fracking.

Protection from discrimination – this is a right protected by offences that become more serious if racially aggravated or persons of a protected characteristic are targeted by an offender. This can have an impact on the offence charged and also in sentencing.

 

How else is the Act used?

The legislation is there to challenge injustices, Hillsborough is probably one of the better-known examples where the Act was used by the families to secure an inquest.

It has been extensively argued in diverse cases such as seeking confirmation over questions on assisting suicide and euthanasia, keeping elderly couples together in nursing homes, and preventing extradition to countries that have the death penalty.

It is also likely to be used in respect of Windrush and Grenfell Tower inquiries.

It may well also be raised in current arguments as to whether the power of stop and search should be expanded as there are real concerns certain communities may be unfairly targeted.

 

How can we help?

Our lawyers are dedicated to securing justice and we achieve this by using a very wide range of laws.

We can advise you of the impact of this law in your particular circumstances, if you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Stop and Search

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The power of the police to stop and search is currently in the media due to the rise in murders and serious crimes of violence involving the use of knives, particularly in London. A particular area of concern is the disproportionate use of search powers in relation to some minority groups.

So, what are the relevant powers?

 

Section 1 Police and Criminal Evidence Act 1984

The most commonly used power to search people is under section 1 of PACE. This section allows searches if an officer has reasonable grounds to suspect a person of carrying drugs, weapons, stolen property or an item that can be used to commit crime.

 

Section 60 Criminal Justice and Public Order Act 1994

This power has been used recently by London councils in response to the murders taking place. Section 60 allows the police to search anyone in the specified area without the need for “reasonable grounds” that is required for a search under section 1 above. The vast majority of searches under this power are carried out by the Metropolitan police.

 

Sections 47A Terrorism Act 2000

This section allows the police to conduct searches where there is a reasonable suspicion that an act of terrorism will occur. The power had not been used extensively until the terrorist attacks that started to take place in 2017.

 

What must the officer do under section one?

In order for a search to be lawful, the officer needs to inform you of his name and police station, and he can use reasonable force to carry out the search. You may be detained for the search, near to where you were stopped and only for a short time. You must be told why you are being searched and under what power and a record of the search should be made.

 

How are section 60 searches authorised?

An officer of inspector rank or above can authorise searches within an area for up to 24 hours. He can only do so if he reasonably believes that:

–    incidents of serious violence may take place and an authorisation is required to prevent their occurrence; or

–    an incident of serious violence has taken place, a dangerous instrument or offensive weapon is being carried, and authorisation is required to find it; or

–    persons are carrying dangerous weapons or offensive weapons without good reason.

 

How are section 47A searches authorised?

A senior police officer can give an authorisation for searches in a specified area if he reasonably suspects that an act of terrorism will take place and reasonably considers that the authorisation is necessary to prevent such an act. Also, that the specified area is no greater than necessary for a duration that is no longer than necessary to prevent such an act.

Under this authorisation an officer may stop and search a vehicle, driver, passenger, pedestrians (including anything carried by them) but only for the purpose of discovering whether there is anything which may constitute evidence of use for terrorism or that the person is a terrorist.

 

How may we help?

The above is only a basic and brief outline of the relevant law. We can advise you on the legality of any search and/or the admissibility of any evidence found during the search. If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Fly-tipping – ensuring all polluters pay

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We all know that fly-tipping is an offence, but did you know you commit an offence if you pass waste to someone who isn’t licensed?

 

What do you mean by ‘waste’?

This article is referring to household waste, for example, excess rubbish that does not fit in your general collection bins.

 

How could I commit an offence?

You have a ‘duty of care’ to take all measures reasonable in the circumstances to ensure you only transfer waste to an ‘authorised’ person. Note that if a tradesperson working at your house produces waste, they are responsible for the removal and disposal.

Although most offences of fly-tipping are committed by someone paid to take the waste away rather than the person who produced the waste, this means that you commit an offence if the person you ask to take the waste is not licensed and illegally disposes of it.

 

What is an authorised person?

This is usually the local authority collection service, a registered waste carrier or an operator of a registered site. You can check if a person is licensed on the Environment Agency website.

 

What could happen to me?

The government is introducing a fixed penalty notice for breaches of the household duty of care. Currently, you could be offered a caution, warning or be prosecuted for failing to comply with your duty of care. The new penalty notice system provides an alternative to a prosecution.

The penalty will range from £150 to £400; the minimum discounted penalty available will be £120. The penalty is set deliberately at a high rate as otherwise it may still be cheaper to use an illegal waste collector, it is intended to act as a deterrent and is therefore set at a rate that is higher than the cost of legitimate disposal.

The guidance produced by the government for local councils’ states that householders should not be fined for minor breaches and consideration should be given as to whether it is proportionate and in the public interest to issue a notice to a person who is classed as vulnerable.

 

What if I do not pay the penalty?

If you chose not to pay the penalty you can be prosecuted for the offence through the courts. The typical fine imposed at court is likely to be significantly higher than the penalty notice.

 

When will the law be brought in?

The law to introduce the penalty is expected to be in force early next year (2019).

 

How can we help?

If you are invited to attend an interview with any prosecuting agency, such as a local authority, you can have a solicitor present.

Please contact us for expert, tailored advice. If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

The “Gangs Matrix”

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Earlier this year the Metropolitan Police was in the spotlight over their use of a ‘gang matrix’, and now they are back in the news again.

 

What is the matrix?

It is a list set up after the London riots in 2011, holding information on “persons of interest”.

Various intelligence sources are used to identify gang members, sources such as social media posts, information from local councils and convictions for violent crime.

Once on the list, a person is given a score based on the risk that they pose.

As the information was shared, it was argued that being on the list could cause issues with education, housing and use of local services.

 

What was the problem?

Amnesty International published a report on the matrix stating that it was racially discriminatory and in breach of human rights law.

87% of those on the list were from black or ethnic minority communities.

The counter-argument was that those identified on the list were offered support to divert them away from offending.

 

Why is this back in the news?

Following concerns over the information, there was an investigation by the Information Commissioner’s Office (ICO).

 

What did the investigation find?

The ICO investigation found numerous breaches of data protection laws. In particular, there were concerns that the gang matrix did not distinguish between offenders and victims of crime, information was shared inappropriately with other public bodies, and in some areas, informal lists were kept of people who were taken off the matrix.

 

What action has been taken?

The Met has been issued with an enforcement notice by the ICO. Although they will be allowed to continue processing data through the gangs’ matrix, the notice requires a number of steps to be taken by the police to ensure compliance with data protection law.

 

What will happen now?

A number of recommendations have been made to the Met for changes to be made.

This includes producing improved guidance on what constitutes a gang member, getting rid of the informal lists, and distinguishing between victims and offenders.

A time limit of six months has been given for compliance with the notice, and the police are required to provide monthly updates to the Commissioner. A spokesman for the Metropolitan Police said that the concerns within the report would be addressed and additional work is being considered to explain the legal framework of the gangs’ matrix to the public.

 

How can we help?

Our expert team keep all aspects of policing under review, to ensure compliance with relevant evidential safeguards.

If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

What Next for Sally?

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In a dramatic climax the jury returned guilty verdicts in the case of R v Sally Metcalfe, the hapless Coronation Street Councillor caught up in fraud, money laundering and bribery.

As viewers will know, poor Sally appears to be a victim of Duncan’s cunning plan to divert blame elsewhere.

Her fate now lies in the hands of the trial judge, but a custodial sentence appears to be a real possibility.

But, what options does Sally have in relation to appeal?

Sally and her legal team must move quickly as an appeal against conviction must be lodged within 28 days of the verdict. An application to appeal can be made ‘out of time’ but there must be a good reason for any delay.

Since we can be rightly critical of her legal team, one of the first decisions may well be whether to instruct new solicitors and counsel to advise.

But whatever the decision made in respect to legal representation, it is important to note that appeals are not to be viewed as an automatic ‘second bite of the cherry’.

The Court of Appeal will only overturn a conviction if it is ‘unsafe’, so Sally’s legal team will need to identify something that went wrong in the trial process; if nothing did go wrong then an attempt at appeal would simply be futile, raising false hopes.

Sally’s best bet will be to continue the battle to clear her name in the hope of finding evidence that points towards Duncan and his framing of Sally.

This is referred to as ‘fresh evidence’ and must be genuinely new evidence that was not available to Sally and her lawyers at the time of trial.

Of course, Sally’s case isn’t real, and we can expect the scriptwriter to exercise some editorial licence when it comes to explaining the intricacies of the law, so don’t take too much notice of the legal wrangling as it inevitably unfolds in future episodes.

In the real world, a wrongful conviction is a most dreadful experience for both defendants and their families, exacting the cruellest toll.

How can we help?

If you require advice in relation to any appeal matter it is imperative that you act quickly. Our team of experienced lawyers are here, ready to take you through the process.

If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

 

Price and service transparency

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As of 6 December 2018, law firms are required to publish information about certain price, service and regulatory matters.

 

Who needs to publish information?

An authorised firm or a sole practitioner must publish cost information on its website (or it must be available by request if there is no website). The requirement arises whenever a firm publishes that certain services are available (see below).

 

What is cost information?

Put simply it is the price of services.

 

Why is this being done?

The requirement is to ensure there is transparency and that a potential client can obtain information on cost without a formal appointment.

 

Does it cover all fees?

Only cost information on certain services needs to be provided. For individual clients, these are:

  •    Residential conveyancing
  •    Administration of an estate
  •    Immigration (excluding asylum appeals)
  •    Motoring offences (cases dealt with in a single hearing at the Magistrates Court)
  •    Employment tribunal (advice and representation to employees for claims for unfair or wrongful dismissal)

For businesses, the services requiring cost information are:

  •    Employment tribunal
  •    Debt recovery
  •    Licensing applications

 

The information must not be misleading or inaccurate; additional charges must be clearly expressed, as should the inclusion or otherwise of VAT. The information must be in a prominent place on the website and be clear and accessible.

 

Is there anything else that has to be said?

The experience and qualifications of anyone carrying out the work have to be stated, in a general way, this does not mean that individuals have to be named. For each heading of work listed above certain information has to be provided, particular to the area of law.

Firms also need to make sure the detail of its complaints procedure is published along with their regulatory information. This would include the Solicitors Regulatory Authority number and (from next year) the SRA digital badge.

Restorative Justice

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What is it?

Restorative Justice, or RJ as it is sometimes known, is a way of holding offenders to account and can be used as an alternative to a caution or conviction, or alongside a sentence.

 

What happens?

RJ gives a victim the opportunity to meet or communicate with an offender to help them understand the impact of the crime and provides the offender with the chance to make amends.

This may be done in a face to face meeting, by way of a written apology, or the offender could make amends to the community rather than the victim directly.

Communication takes place in a controlled environment, if the meeting is face to face, for example a facilitator will be present. The meeting would centre on the harm caused and ways to repair that harm.

 

When can RJ be used?

For any kind of communication to take place the victim must be happy to participate, and the offender has to have admitted the offence and also be willing to take part.  

Gareth Thomas, the former Wales rugby captain, chose to deal with his complaint in this way after he was the victim of a homophobic assault.

The young person involved admitted the offence, and it is being dealt with by way of RJ rather than via a caution or through Court.

Mr Thomas said he thought that the offender could learn more through RJ than any other way.

RJ can also be used when an offender has received a prison sentence. Cathryn Walmsley of Bolton was assaulted, the offender pleaded guilty to causing grievous bodily harm with intent, and a four-year term of detention was imposed. Mrs Walmsley read a victim impact statement out in court to set out how the offence had affected her. She also said that she would like to sit down with the offender to discuss what he did, she believes that this may give her “closure”.

It may also assist the offender, and it is hoped in these circumstances that it would reduce the likelihood of any future offending.

 

Does it work?

Research undertaken by the government in a seven-year period found that there was an 85% victim satisfaction rate and there was a reduction in the frequency of re-offending of 14%.

 

How can we help?

You are entitled to free and independent advice at the police station, we can advise you whether RJ would be an appropriate option in your case and make representations on your behalf for your case to be dealt with in that way.

If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Nuisance calls and the Information Commissioner’s Office

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Everyone has received a nuisance call, and they are a real nuisance to many, but how do your details become available, and what is being done about it?

 

Who are the ICO?

The Information Commissioner’s Office (the ‘ICO’) is an independent organisation that was set up to uphold information rights in the public interest, promote openness by public bodies and data privacy for individuals.

The ICO take various forms of action against organisations and individuals, and that can include criminal prosecutions.

 

What happens with a criminal prosecution?

Criminal prosecution has, historically, been taken under one of the two Data Protection Acts. Under this legislation, the maximum penalty for breach is a fine. There is also a separate financial penalty regime that can now result in very high financial penalties being imposed.

 

Only a fine?

Until now the action taken by the ICO has only ever resulted in a financial penalty. It would appear, however, that as the seriousness with which such breaches are taken increases, the ICO have reconsidered their powers and options.

For the first time the ICO has used the Computer Misuse Act in a prosecution, crucially this legislation allows for a custodial sentence rather than just a fine.

Mustafa Kasim worked for a car accident repair firm. He used the login details of his colleagues to access the company’s software system and continued to access a similar system when he moved to a new company.

From there he took details of customers names and addresses along with vehicle and accident details, information that was then forwarded to claims management companies.

The ICO were alerted following a referral from the original company due to an increase in complaints concerning nuisance calls.

In using the different legislation for the prosecution, the ICO said that they had to reflect the nature and extent of the offending and the wider range of penalties available for the Court by using the Computer Misuse Act.

 

How much more serious is the other offending?

Section 1 of the Act, as prosecuted in this case, allows for up to 2 years imprisonment to be imposed at the Crown Court. Other offences under the Act carry up to 14 years imprisonment.

This case is a clear sign from the ICO that they are considering their wider powers and duties in respect of prosecutions, and it is unlikely that Mr Kasim will be the only person to be prosecuted under alternative legislation. No longer will breach of privacy and data protection rules simply be subtracted from the bottom line as a cost of business.

 

How can we help?

Our expert and knowledgeable team are on hand to assist you should you wish to discuss any aspect of your case, we deal with all aspects of criminal and regulatory law. Please contact us on 0113 247 1477 or email us at [email protected].

Alexa – Witness for the Prosecution?

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On 29th January 2017, Christine Sullivan and her housemate were found murdered in Farmington, New Hampshire. Their bodies were discovered by the house owner, Dean Smoronk, who was Sullivan’s boyfriend.

Timothy Verrill, an associate of Smornok, was later charged with second-degree murder and has pleaded not guilty.

Although the evidence against Verrill is said to be substantial, the police are trying to obtain further information and potentially a recording of what took place at the house.

 

How?

In the kitchen, where it is believed Christine Sullivan was attacked, there was an Amazon Echo. The police believe the Echo recorded the attack and subsequent events.

Alexa is the artificial intelligence behind the Echo. In order to be able to respond to questions, the Echo needs to continually assess what is said within its range.

Amazon designates “wake-up” words and when one is detected the device records what is picked up, including a brief period beforehand.  The recordings are then saved until they are manually repeated.

Strafford County Superior Court granted the State’s application for a search warrant in this case. Amazon.com has been directed to produce “…forthwith to the Court any recordings made by an Echo smart speaker with voice command capability” for the relevant two-day period. As well as the Echo recording Amazon is to provide “any information identifying cellular devices that were paired to that smart speaker during that time period”.

 

How could this impact the UK?

In Germany, prosecutors used a Health App to track activity at critical times. Many court cases here have used mobile phone tracking or “cell site analysis” to pinpoint the location of an offender at a particular time, CCTV has also become a crucial tool for prosecutors.

There many other voice-activated assistants from companies such as Apple, Microsoft and Google. Most of these devices share recordings with a central-server based artificial intelligence to analyse commands. The number of households with such devices will be increasing every day, and how many of us realise just what is being recorded?

Although we are not aware of any cases in this country involving these types of recordings, it is probably not long before the situation arises and a Court finds itself adjudicating on the release of information. In principle there is no reason to believe that the evidence, if obtained, will not be admitted.

 

How can we help?

We will always assess the strength of any evidence against you, and, more importantly, we will consider the admissibility or otherwise of any evidence. If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Can I get a suspended prison sentence?

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A suspended sentence is a term of imprisonment that is suspended so that you do not go into custody immediately and will not go into custody if you comply with the conditions attached.

 

Who can get a suspended sentence?

In the Magistrates’ Court, any sentence of 6 months’ imprisonment (12 months for two or more either-way offences) or less can be suspended and in the Crown Court, any sentence of 24 months or less can be suspended.

The minimum length of imprisonment for a suspended sentence is 14 days.

It follows, therefore, that if your offending warrants a sentence above the maximum level, or you are sentenced as a dangerous offender, you will not receive a suspended sentence.

This sentence is also not available for youths.  

 

When can a sentence be suspended?

The sentencing court will first consider whether or not a custodial sentence should be imposed, in legal terms whether the “custody threshold” has been passed.

If custody of one of the lengths discussed above is imposed, the Court can then move on to decide whether it can be suspended or not.

In considering whether the sentence can be suspended the Court will look at the particular circumstances of the offence and offender and consider a sentencing guideline that applies to this scenario.

Factors to consider would be whether there is a realistic prospect of rehabilitation, strong personal mitigation and the impact of immediate custody on others.

Mitigating against a suspension would be that the offender is a risk or danger to the public, the most appropriate punishment is immediate custody and a poor history of compliance with court orders.

 

How long can it be suspended for?

From six months up to two years (the ‘operational period’).

 

What conditions may be imposed?

A sentence is suspended on condition that you do not commit any further offences during the operational period. A straightforward order will only have this condition.

Additionally, you can have a suspended sentence order that is subject to further requirements similar to this in a community order. This can include unpaid work, a curfew and supervision with the Probation Service. If you are subject to such an order, it is also suspended on condition that you comply with the requirements imposed.

 

What happens if I breach the order?

You can breach an order by either committing an offence within the operational period or failing to comply with any requirements if imposed.

The starting point for breach of an order is to activate the period of imprisonment. The length of imprisonment may be reduced to reflect the level of compliance with the order and any requirements. If it is unjust in the circumstances to activate the sentence you may be fined for the breach, made subject to further or more onerous requirements, or the operational period may be extended.

 

How can we help?

We can provide advice on possible sentence, representation for any offence from the police station through to sentence and for any breach proceedings.

If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].