Public Order – New Sentencing Guidelines

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New sentencing guidelines for public order offences come in to force for adults sentenced on or after 1 January 2020.

In August 2008, the Sentencing Guidelines Council published Magistrates’ Court Sentencing Guidelines (MCSG) guidelines on sentencing the offence of affray and summary offences relating to threatening and disorderly behaviour provided for by section 4, section 4A and section 5 of the Public Order Act 1986. There was also a brief reference to violent disorder offences which may be sentenced in magistrates’ courts. This guidance did not include guidelines for sentencing these offences in the Crown Court, and also did not include guidance on sentencing the public order offences of riot, or offences relating to stirring up racial or religious hatred and hatred based on sexual orientation.

The offences covered by the public order guideline are relatively high in volume. There were 18,600 offenders sentenced for the public order offences covered by the guideline in 2018. The volume of some offences is however relatively low, in relation to the offence of riot only 30 offenders have been sentenced in the last decade for which figures are available (2008-2018). Around 300 each year are sentenced for violent disorder, and 2400 for affray, the rest being sentenced for the lesser offences.

Will the new guideline affect sentence length?

For the offences of riot, violent disorder and affray, it is suggested that sentence length will not be affected.

For threatening behaviour and disorderly behaviour with intent, there have been some reductions to sentencing ranges and starting points for the different levels of offence seriousness, compared to the MCSG. It is possible that the decrease to sentence levels in the guideline could lead to a decrease in sentencing severity for these offences, whereby some individuals who currently receive a custodial sentence may now receive a community order. However, it is also possible that much of the decrease in sentencing severity could come from offenders currently receiving suspended sentence orders now receiving community orders. Therefore there is an upper estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and a lower estimate than the guideline could lead to a reduction in the requirement for up to 30 prison places per year and a small increase in the use of community orders.

For racially or religiously aggravated threatening behaviour and racially or religiously aggravated disorderly behaviour with intent, sentencers are first asked to sentence the basic offence, and then increase the sentence considering the level of racial or religious aggravation involved. This ‘uplift’ approach reflects the Court of Appeal guidance on how aggravated offences should be sentenced, and aligns with current practice in relation to assessing the level of aggravation present in offences. This is the same process as used in the Council’s Arson and Criminal Damage guideline, where the consultation stage research found that there was a risk that the guideline could result in slightly higher sentences. It is, therefore, possible that the guideline could cause an increase to sentencing severity. However, some of the starting points and sentence ranges for the basic offence are lower than under the current guideline, which could offset these potential increases. Therefore there is a lower estimate that the guideline will not have an impact on the requirement for prison places or probation resources, and an upper estimate that the guideline could lead to a requirement for up to 40 additional prison places per year and a small decrease in the use of community orders. 

For the offences of disorderly behaviour and racially or religiously aggravated disorderly behaviour, the maximum sentence is a fine and therefore the guideline will not have an impact on prison and probation resources. For the offence of disorderly behaviour, the guideline introduces a new higher category of offending with a higher level of fine than in the existing MCSG guidance (a Band C fine). The guideline may, therefore, increase fine values for this offence. Also, because a fine is included for all levels of offending for racially or religiously aggravated disorderly behaviour – whereas data suggests that around 12 per cent of offenders sentenced for this offence received an absolute or conditional discharge in 2018 (after any reduction for guilty plea) – it is also possible that the guideline could increase the number of offenders sentenced to a fine for this offence.

As ever, our advocates will be vigilant to ensure full adherence to the guideline and act to prevent any ‘sentence creep’ which is something that we have observed with other guidelines.

(Image credit: Tomasz Iwaniec; )

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Drink or Drug Driving – The Second Sample

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In some cases, the police need to take either a blood or urine sample from a driver suspected of driving under the influence of drink or drugs. In almost all instances, the police opt for a blood sample.

Part of the procedure is informing the suspect that they can if they wish request part of the sample for independent testing.

Despite this vital protection being available, we see a large number of people who have failed to take advantage of this procedure. 

Part of the problem is the procedure adopted by the police. The police do not offer a sample to the suspect (save in one instance where the suspect is incapable of consenting), they merely state, at the commencement of the procedure, and as part of a long script, that a suspect can request a sample. 

From a practical perspective, this is a deficiency in the procedure, the suspect must first pick up on the option being available, which is not always easy during what can be a confusing and pressured situation, and then they must later make a specific request.

Before the 1988 road traffic legislation, there was a specific requirement for the police to offer a specimen, so the new law was very much a significant dilution of rights.

In Campbell v Director of Public Prosecutions [2003] EWHC 559 (Admin) the court held:

“It is, therefore, no longer a statutory requirement for the officer to inform the suspect of his right to request his own specimen. [Counsel] submits that I should regard it as by now a settled principle of common law that such information should be provided to those against whom police officers are proceeding under section 7 of the 1988 Act. In my judgment, that is a hopeless proposition.”

This is not, however, the end of the matter as the court went on to state:

“There may well be circumstances, however, when, for reasons similar to those considered by the Court of Appeal in Mitten, a defendant will wish to challenge the admissibility of the analysis because he claims to have been unaware of his right to request the sample and as a result has suffered prejudice. It may be that such an application could be made under section 78 of the Police and Criminal Evidence Act 1984. I do not intend further to anticipate circumstances in which prejudice might be established.”

It may well be the case that a vulnerable or distressed suspect, or a person for whom English is not their first language, may well be able to argue that they were unaware of their rights, even though the police communicated the right. 

It is the effectiveness of that communication that will be critical in such cases.

The above is just one small aspect of the law concerning the taking of samples; it is detailed and complex, so always seek advice before entering a plea at court. A failure to follow the proper procedure may provide a valid defence in this type of case.


How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.  

Firearms – Sentencing Reform

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The Sentencing Council is consulting on a new guideline for some of the most commonly prosecuted firearms offences. At the moment, guidance is to be found only in case law, and this can lead to a challenging sentencing exercise.

The purpose of the guideline is to provide consistency in sentencing, and the impact assessment does not suggest that any general increase in sentences is to be expected, although in many instances the Sentencing Council was met with a weak evidence base to evaluate this one way or the other.

If consistency is achieved, you would expect some sentences to increase, and some decrease, but overall average sentence lengths to be broadly level. However, experience with some other guidelines does suggest that sentence length may creep upwards.

Overall, we would expect it to be easier to predict the likely sentence that a person might receive on a plea or after trial.

One interesting observation is concerning statutory minimum sentences for some offences:

“The Council was surprised to note that exceptional circumstances were being found in around two thirds of disguised weapons cases (section 5(1A)(a)) which appeared to run counter to the principle that in order to justify the disapplication of the five year minimum, the circumstances of the case must be truly exceptional.”

The Council, therefore, felt that:

“Setting out the principles in a guideline is likely to lead to them being more consistently applied, which in turn could lead to exceptional circumstances being found in fewer cases.”

It was also noted that recent changes to Crown Prosecution Service charging guidance for some firearms offences would in itself lead to fewer mandatory sentence cases being prosecuted.


Which offences will the new guideline cover?

Eight guidelines will cover the following offences in the Firearms Act 1968:

  •     Possession, purchase or acquisition of a prohibited weapon or ammunition
  •     Possession, purchase or acquisition of a firearm/ammunition/shotgun without a certificate 
  •     Possession of a firearm or ammunition by person with previous convictions prohibited from possessing a firearm or ammunition 
  •     Carrying a firearm in a public place 
  •     Possession of firearm with intent to endanger life 
  •     Possession of firearm or imitation firearm with intent to cause fear of violence
  •     Use of firearm or imitation firearm to resist arrest/possession of firearm or imitation firearm while committing a Schedule 1 offence/carrying firearm or imitation firearm with criminal 
  •     Manufacture/sell or transfer/possess for sale or transfer/purchase or acquire for sale or transfer prohibited weapon or ammunition.

The consultation runs until mid-January, so it is likely to be Summer 2020 before any new guidelines take effect, but that is not to say that some judges will not have them in mind before then.


How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case. 

Diplomatic Immunity

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The somewhat arcane topic of diplomatic Immunity has hit the news headlines following the tragic death of 19-year-old Harry Dunn, as a result of a road traffic collision.

It has been confirmed that the wife of an American diplomat has returned to the United States and will not face a further criminal investigation in the UK, after asserting a claim for diplomatic Immunity. 

Despite a plea by the Foreign Secretary for Immunity to be waived, so far, the US Government has refused.


What is Diplomatic Immunity?

Diplomatic Immunity, and like procedures, is a protection afforded to foreign diplomats, consular officers, Heads of State (and other leaders) and often their families. 

At any given time, over 20,000 people in the UK have a claim to Immunity.

Diplomatic Immunity can protect the individual from civil and in some cases, criminal liability. The rules are very complex, and protections may vary.

Article 29 of the 1961 Vienna Convention on Diplomatic Relations states:

“The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”


Why Is It Offered?

Diplomatic Immunity is designed to protect the sovereignty of foreign governments when conducting official business abroad and acts to protect individuals against a legal process which may be malign or otherwise unfair. 

Its origins are rooted in many international treaties and enshrined in UK law via Section 2 of the Diplomatic Privileges Act 1964.


Can Immunity be Waived?

Diplomatic Immunity can be waived by the State but not the person themselves (although there was a recent case in another jurisdiction where this apparently occurred), this means that unless the US Government has a change of heart, that is the end of the matter so far as UK criminal proceedings are concerned.

Where the matter involves an alleged commission of a serious criminal offence, the UK Government will in some instances expel that person from the UK and refuse them future entry.


How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case. 

Conservatives Signal Tougher Sentencing Regime

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At the Conservative Party Conference this week, the government indicated that it was to get tough on offenders who commit some of the most serious offences, with automatic release at the half-way point being removed in many cases.

Figures for 2018 disclose that for the most serious sexual and violent offences (those that carry a maximum sentence of life imprisonment), the following sentence types were imposed:

  • Over 4000 Standard Determinate Sentence – the offender will be automatically released at the half-way point in this sentence and be on licence in the community for the second half of the sentence. Those serving short sentences will have additional supervision in the community for a minimum period of 12 months. 
  • Around 250 Extended Determinate Sentences – offender becomes eligible to be considered for release by the Parole Board from the two-thirds point but can serve the full term in prison if not assessed to be safe to release earlier. The custodial term is followed by an extended period on licence for on-going public protection (of up to eight years for sex offenders and five years for violent offenders).   
  • Four hundred life sentences – offender spends minimum period or “tariff” in prison before being considered for release by the Parole Board. The offender may therefore never be released. If released, offenders spend the rest of their life on licence and can be recalled to custody.

The government plans to remove release at the half-way point for those sentenced to standard determinate sentences, and instead keep offenders in prison until the two-thirds point, after that releasing them with tougher licence conditions.


When will the changes take effect?

This proposed change will require legislation and will feature in the forthcoming Queen’s Speech as part of the government’s law and order agenda. 

Assuming that this change passes into law it is likely to be mid-2020 before it is implemented.


Will any change be retrospective?

There are complex issues in relation to retrospective release provisions, and we would not expect the change to be retrospective.


How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case.

Rights – A Mere Illusion?

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The EU has published a report, ‘Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings’, that details the extent to which fundamental human rights, in the context of criminal justice, are upheld across the EU.


Why is this important?

Protecting the rights of anyone suspected or accused of a crime is an essential element of the rule of law. Courts, prosecutors and police officers need to have the power and means to enforce the law – but trust in the outcomes of their efforts will quickly erode without effective safeguards to control how their powers are actually used.


What rights should be protected?

Such safeguards take on various forms. Everyone is presumed to be innocent until found guilty by a court of law. People have the right to remain silent and not incriminate themselves. They should be told why they are being arrested or what they are being charged with. They should also be told what their rights are, including that they have the right to a lawyer. In certain situations, people also have a right to interpretation and translation. 


What were the findings?

Some of the key findings include:

  • The police inform defendants of their rights but practices vary. These range from written to oral information, including leaflets, which may be difficult to understand. Member States should ensure defendants properly understand what their rights are, and provide information in writing and orally as soon as they are a suspect. They should also pay attention to people who may have difficulties due to language or a disability, for example.
  • Very often defendants receive minimal or unclear information about the charges against them. This makes it difficult for them to defend themselves. The police should properly, clearly, and fully inform suspects of their crimes and why they were arrested, as soon as possible.
  • Receiving legal assistance promptly and directly does not also always occur, particularly for people that have been locked up. Member States should ensure all defendants receive prompt, direct and confidential access to a lawyer before they question jailed defendants.
  • Sometimes the police treat suspects as witnesses or informally question them. However, this deprives suspects of their right to remain silent and not to incriminate themselves. Member States should treat all suspects as suspects to respect their rights.

The report also looks at European Arrest Warrants that come from another EU Member State. As well as the issues above, defendants also face rights issues arising from having two countries involved.

  • Linguistic differences often make it difficult for defendants to understand their rights when it comes to warrants and their right to consent to be transferred abroad for questioning. Member States should provide translation and interpretation services so that defendants can fully understand the charges against them and what the European Arrest Warrant entails.
  • Defendants often have difficulties getting legal representation in both countries. This can be due to linguistic differences, as well as the police’s lack of knowledge about other countries’ legal systems and unwillingness to interfere in another country’s jurisdiction. Authorities in the country that process the warrant should help defendants get legal assistance in the country that issued the warrant. Member States could provide legal association lists when issuing the warrant.


The importance of lawyers

Our lawyers are trained to know your rights and perhaps more importantly, insist that they are upheld. We believe in proactive and robust defence, at every stage of the proceedings.

Whilst the UK fares well compared to some other EU countries, we can never be complacent, time and time again we come across cases where fundamental rights have been ignored, often to the great detriment of the suspect or defendant.

If arrested, suspects must avail themselves of free legal advice and assistance. We are only ever a phone call away.


How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case. 

Delayed Justice

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Janet Commins was born on 9 June 1960. On 7 January 1976, shortly after 7.00 pm, she left her home in Flint to meet friends at the local swimming baths. She left a note for her parents, as she often did, to say that she would be back at around 8.30 pm. She saw her friends at the baths and was sighted close to her home in the company of two teenage boys at about 8.10. At some time between 8.15 and 8.45, she called to see a friend who lived a few doors away from her in her own street. She was told they were not in. After 9.00 pm, when the baths were closed, Janet’s parents became increasingly concerned and at 11.00 pm they reported her missing. On the following morning, children playing on the rough ground adjacent to Gwyneth Primary School found Janet’s body concealed in bushes.

Stephen Hough had just turned 17 and was interviewed by the police. Following an admission that he made to his girlfriend, he was charged with murder. 

The admissions Hough made were denied during the investigation process, and he did not have the legal protections that are now available to suspects.

On the third day of his trial, he changed his not guilty plea to murder to one of guilty of manslaughter. That plea was acceptable to the court, and he was sentenced to 12 years imprisonment. Regrettably, however, that was not an accurate indication of guilt.

As there was a possibility of a second offender, the enquiry was left open, and in 2017 a second man was convicted of sexual assault and the manslaughter of Janet.

The forensic evidence in the case, not available when Stephen Hough was charged, disclosed that Hough was not guilty of any crime, there had been a lone attacker, and that person was not Stephen Hough.

In January 2019 the Court of Appeal quashed Hough’s conviction commenting:

‘… the appellant can leave court wholly exonerated of involvement in this terrible crime.’

‘Our system of criminal justice is, of course, human and errors can be made however strenuous the efforts to ensure that evidence is properly and appropriately collected and placed before the court. 

The pressures of being interviewed by the police are clearly real and the protections introduced by the Police and Criminal Evidence Act 1984 have done much to address, to such extent as it is possible, the pressures on those arrested and being interviewed. 

In this case, however, it is clear that a serious injustice was done for an innocent man felt constrained to admit a grave criminal offence, not sharing the true position with his own legal team. 

Many years have passed since he was released from prison but we hope that the quashing of his conviction and the contents of this judgment start to address the injustice that was done to him.’


The Issue of Delay

Ordinarily, appeals must be lodged within a relatively short period following trial, and late requests often stand little prospect of success. 

This extraordinary case illustrates exceptions to that rule, particularly where modern forensic techniques lead to the clear conclusion that the convicted person is innocent.


How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case. 

The Absent Witness

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In some instances, it is not convenient for a witness to be present in court to give evidence, generally because they live or work some distance away from the court, or some other good reason.

There are legal provisions that cater for this scenario, and while the prosecution widely uses them (notably for police officers), it is vital to remember that the defence can take advantage of the legislation in the same way.


What does the law say?

Section 51 of the Criminal Justice Act 2003 states that a witness (other than the defendant) may, if the court so directs, give evidence through a live link in the following criminal proceedings.

The provision covers these proceedings:

(a) a summary trial,

(b) an appeal to the Crown Court arising out of such a trial,

(c) a trial on indictment,

(d) an appeal to the criminal division of the Court of Appeal,

(e) the hearing of a reference under section 9 or 11 of the Criminal Appeal Act 1995 (c. 35),

(f) a hearing before a magistrates’ court or the Crown Court which is held after the defendant has entered a plea of guilty, and

(g) a hearing before the Court of Appeal under section 80 of [the Criminal Justice Act 2003].


Can a defendant give evidence via this provision?

Section 51 does not apply to defendants and is considered somewhat out of date in other respects; in Clark [2015] EWCA Crim 2192 the court observed:

‘That there are idiosyncrasies in the provision of this important aid to the administration of justice does not, in our judgment, befit a modern system of criminal justice. It does not further the overriding objective to deal with cases justly, including being fair to the parties, recognising the rights of defendants, respecting the interests of victims (and, in this case, witnesses) and progressing cases in a manner that is efficient, expeditious and proportionate.

There are clearly circumstances where it may be in the interests of justice for a court to be able to receive evidence by live link from witnesses and defendants for which the existing statutory provisions do not provide. One potential example is a defendant who wishes to give evidence in relation to a minor road traffic offence alleged to have been committed hundreds of miles from his home. There may even be examples where it may be in the interests of justice for a court to be able to receive material by telephone.

When Parliament first began legislating to prescribe the circumstances in which criminal courts could receive evidence by live link, the requisite technology was in its infancy and the courts were not necessarily equipped with the relevant equipment (or technical knowledge). Times have changed; technology has improved and is continually improving. The courts now regularly receive evidence by live link where the statute permits.

In the circumstances, therefore, it may be that Parliament should consider repealing the provisions of primary legislation relating to live links and provide a general authority to the Criminal Procedure Rules Committee to make rules to determine how and in what circumstances the criminal courts may receive evidence. Rules made by the Committee have the benefit of being formulated by representatives of those that have to use them and may be affected by them. They can also be amended with relative speed (for example, where gaps or unintended lacunas come to light) and in order to make best use of emerging technology. That, however, is a matter for Parliament, but, in our judgment, it is a step which requires very serious consideration.’


What factors will the court consider?

A direction may not be given under this section unless the court is satisfied that it is in the interests of the efficient or effective administration of justice for the person concerned to give evidence in the proceedings through a live link.

In deciding whether to give a direction, the court must consider all the circumstances of the case, and those circumstances include in particular:

Those circumstances include in particular:

(a) the availability of the witness,

(b) the need for the witness to attend in person,

(c) the importance of the witness’s evidence to the proceedings,

(d) the views of the witness,

(e) the suitability of the facilities at the place where the witness would give evidence through a live link,

(f) whether a direction might tend to inhibit any party to the proceedings from effectively testing the witness’s evidence.

Section 54 allows the judge to give directions to the jury, if necessary, to ensure that they give the same weight to evidence given through a live link as they would had the evidence been given by the witness in person in court. Advocates in the magistrates’ court should also keep this in mind when making closing submissions.

In some cases, applications for evidence to be given via live link are not appropriate, and we will strenuously object. Where it is in our client’s interest to make such an application, we will ensure that a reasoned and strongly supported application is advanced.


How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of your case. 

More Sentences at Risk of Prosecution Appeal

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The prosecution, via the Attorney General, has the right to ask the Court of Appeal to consider whether sentences for certain offences are unduly lenient.

How does the scheme work?

Anyone can ask the Attorney General to consider whether a sentence is unduly lenient. If the Attorney agrees an appeal will be lodged within 28 days of that sentence and the court will consider the matter. 

This scheme is essential protection against sentences that are too lenient.

Can it be used for any offence?

There is a list of offences that the scheme applies to, it is a relatively extensive list, but the government has announced that further offences are soon to be added to it.

How often are appeals lodged?

The Attorney General does not invite the court to interfere lightly, even though around 1,000 requests for a review are made each year only a fraction are referred to the court, and typically between 100-150 sentences are increased each year.

In all cases where an appeal is heard, we fight extremely hard to prevent any increase in sentence.

What offences are to be added to the list?

The following offences will be added in the next few months:

  • Abuse of position of trust: sexual activity with a child (s.16, Sexual Offences Act 2003), 
  • Abuse of position of trust: causing or inciting a child to engage in sexual activity (s.17, Sexual Offences Act 2003)
  • Abuse of position of trust: sexual activity in the presence of a child (s.18, Sexual Offences Act 2003)
  • Abuse of position of trust: causing a child to watch a sexual act (s.19, Sexual Offences Act 2003)
  • Inciting a child family member to engage in sexual activity (s.26, Sexual Offences Act 2003)
  • Sexual activity with a person with a mental disorder impeding choice (s.30, Sexual Offences Act 2003)
  • Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity (s.31, Sexual Offences Act 2003)
  • Engaging in sexual activity in the presence of a person with a mental disorder impeding choice (s.32, Sexual Offences Act 2003)
  • Causing a person, with a mental disorder impeding choice, to watch a sexual act (s.33, Sexual Offences Act 2003)
  • Possession of indecent photograph of a child (Criminal Justice Act 1988, s.160)
  • Taking, possessing, distributing, publishing Indecent Photographs of Children (s.1 Protection of Children Act 1978)
  • Harassment: putting people in fear of violence (s.4, Protection from Harassment Act 1997)
  • Stalking involving fear of violence or serious alarm or distress (Protection from Harassment Act 1997, s.4A, Protection from Harassment Act 1997)
  • Controlling or Coercive Behaviour in an Intimate or Family Relationship (s.76, Serious Crime Act 2017).

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with us on 0113 247 1477 and let us help. We can advise on all aspects of your case.

Gait analysis

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What is gait?
Gait, quite simply, is how a person walks, the movement of limbs.
How does this relate to criminal law?
With the ever-increasing use of CCTV, the identification of offenders from footage is also increasing. Sometimes a face cannot clearly be seen, either because it is covered or because the footage simply isn’t clear enough. This is where gait analysis could be used. 
What is gait analysis?
Forensic gait analysis is the analysis, comparison and evaluation of features of gait to assist in the investigation of crime. 
Who can provide a gait analysis?
Sometimes a civilian or police witness may make an identification based on recognition of the way someone moves and walk. This may be easier, for example, if they have an unusual way of walking or a limp. On other occasions the prosecution may have obtained an expert comparison to use against you. If you want to challenge the evidence, there are experts available who can provide reports.
Can it be used in court?
In 2014 Mohammed Hashi challenged his conviction for murder on the ground that the expert evidence given by a consultant podiatric surgeon was flawed. The CCTV did not permit any facial identification, so the prosecution relied on expert evidence. This said there were strong similarities between the walking gait of the male on the CCTV and the police station footage of Hashi.

The defence relied on a different expert who said the footage was insufficient to be able to make any reliable analysis. 
The Court of Appeal referred to gait analysis as a developing science and considered the Home Office Operational Requirements Manual 2009. The Manual suggested how much of the individual should be shown on the screen to be able to discern characteristics. It did not, however, provide an industry standard for the range at which the camera should be set to render gait analysis possible.

The Court of Appeal said that the evidence should have been allowed as the jury were able to consider all the issues.
In 2018 Elroy Otway appealed against his conviction for murder objecting to the expert evidence that had been introduced. The evidence was from a podiatrist who studied CCTV footage said to be of the appellant at a garage and compared it to footage of the appellant from the police station.

It was argued that gait analysis was not sufficiently recognised or advanced to merit its use in court, and even if it was, the podiatrist, in this case, could not be considered an expert.

The evidence was circumstantial, and the jury was told to look at the evidence as a whole. In doing so, they were permitted to consider the evidence from the podiatrist of similarities in walking gait.
The Court of Appeal said that although they did not endorse the use of podiatric evidence in general, the trial judge had been entitled to rule the evidence admissible. Each case has to be considered on its own merits.
Expert reports 
It would seem from the cases above that the Courts would benefit from some form of guidance or code of practice in respect of gait analysis.

Last year the Forensic Science Regulator consulted on a specific code of practice to cover gait analysis and published a draft code. No final guidance seems to have been issued.

In the meantime, although the draft guidance is available, it is likely each case will continue to be considered on its own facts. 

As with all evolving sciences we keep a keen eye on new developments and will always seek to challenge such evidence. We have seen time and time again that what at one point in time might have appeared to be sound evidence can later be shown as to be fundamentally flawed.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with us on 0113 247 1477 and let us help. We can advise on all aspects of your case.