Mental Health and Criminal Law

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Mental Health is a complicated business. Conditions are not easy to diagnose, doctors can disagree on which disorder a person is suffering from, or even if they have a mental health condition at all.

Those with mental disorders might have a host of specific needs in court on top of those of the typical defendant. That’s if they’re mentally well enough to stand trial at all, or if the CPS deems it is in the public interest to charge them.

 

Diversion

Our initial approach is to seek diversion away from the court process wherever possible, a proactive approach with the police and Crown Prosecution Service can often avoid prosecution and more speedily access any necessary medical help that an accused person needs.

 

How do Courts approach Defendants with Mental Health Problems?

Sentencing defendants who appear to have mental health problems is a very difficult exercise. The Sentencing Council recently published a draft guideline for a general approach to sentencing defendants who have mental health problems.

This guideline is now open for consultation. The idea is that it will make sentencing easier and more consistent amongst those who suffer from mental illness.

It will apply only to some mental health conditions, including schizophrenia, bipolar disorder, PTSD, learning difficulties, autistic spectrum disorders, and dementia.

Although the guideline is still at consultation stage there is much that we can already utilise to assist those we defend.

 

What Sentences are Available?

Assuming a person is not well enough to stand trial, “unfit to plead”, a hearing goes ahead to determine whether they did the act; but this is not an ordinary trial with a “guilty” or “not guilty” outcome.

If they have done the act, or are found guilty in the usual way, there are several mental health-specific sentencing options available to the Judge under the Mental Health Act 1983.

Hospital Order

A Judge must be satisfied, on the evidence of two doctors, that this is the appropriate order, and that treatment is available.

The order is initially for six months but can be renewed for a further six and then annually. A person can be discharged from the hospital by their doctor, hospital manager, or First-Tier Tribunal (Mental Health).

Restriction Order

This is a type of order that attaches to a Hospital Order, requires at least one doctor to give live evidence, and can only be made if it is necessary to protect the public.

They restrict how a person can be discharged for a certain period, and they can be made indefinitely.  

Only the Secretary of State, in most cases, can discharge someone under a Restriction Order. There is still a limited right of review in the First-Tier Tribunal (Mental Health).

Hospital and Limitation Directions

Otherwise known as “Hybrid Orders” these are a conventional prison sentence, with a direction that the time should be served in hospital rather than prison. These can only be made where a person is over 21.

If a person is discharged before the end of the prison term, they are transferred back to prison.

If they complete the “sentence”, they remain in hospital on the terms of a regular Hospital Order.

Several other factors weigh into whether any of these orders can or should be made.

 

Can Someone Still be Sent to Prison?

Yes. A Judge is not obliged to make any of these orders where a defendant suffers from mental health problems and can pass an ordinary prison or another sentence.

In the case of insanity or unfitness to plead, the Judge must use a mental health sentence or give an absolute discharge.

 

How we can assist

If you need specialist advice, then get in touch with us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. At all stages we can access specialist medical advice to ensure the appropriate outcome.

Government Tightens Terrorism Laws

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The Manchester Arena bombing, the London Bridge attack, Shamima Begum. These are some examples of terrorism headlines in the past few years.

The Counter-Terrorism and Border Security Act 2019 is the Government’s latest answer to curbing and punishing terrorist activity. The Act creates new terrorism offences, changes some old ones, and increases the maximum sentence for many existing ones. The new provisions came in to force on 12 April 2019 and apply to offences committed on or after that date.

Expression of Support for Proscribed Organisations

This new offence covers a situation where a person expresses an opinion or belief that supports a proscribed organisation and is reckless as to whether the person listening will be encouraged to support it.

This is explained as plugging a gap expressed by the Court of Appeal in Anjem Choudary’s case; that it was not unlawful to support a proscribed organisation, or to express those views.

It was an offence to actually and intentionally invite support for them.

Doubtless there will be free speech challenges to this new provision under Article 10 of the European Convention on Human Rights. The Court in Choudary ruled that the existing offence of inviting support did not breach Article 10 because it did not restrict the expression of views.

Publication of Images and Seizure of Articles

This creates an offence of publishing images, including videos, of prohibited clothing/articles (usually flags or banners) in circumstance where it arouses a reasonable suspicion that the person is a member of a prohibited group.

It covers situations where the image itself may be very good evidence of the person wearing or displaying an article, but no offence is committed because they are not in a public place in the photograph.

The photograph itself, of course, can reach a wide audience (for example via social media) similar to being in a public place, but this was not an offence up to now.

Obtaining or Viewing Material over the Internet

This makes it an offence to simply view, on top of actually download/record, information likely to be useful to a terrorist attack. It also clarifies that the existing provisions do indeed include downloading information.

There is a defence if a person can show a reasonable excuse, for example a journalist researching a story.

This offence may also face legal challenge based on free speech and freedom of expression.

Entering or Remaining in a Designated Area

This section is expressly to deal with “foreign fighters” that leave the UK for places such as Syria in order to fight for proscribed organisations such as IS.

The Secretary of State can make regulations designating areas outside the UK, where he is satisfied it is necessary in order to protect the public from threats of terrorism.

It would then become as offence for UK nationals or residents to go to, or remain in, any of those designated places subject to a one-month grace period and exceptions for people such as diplomats or armed forces, and other reasons such international aid work or to visit a terminally ill relative.

It is also a defence to enter involuntarily.

The Secretary of State must keep any designation under review, and in any event a designation lapses after three years.

Encouraging Terrorism and Dissemination of Terrorist Publications

This section amends the current sections 1 and 2 of the Terrorism Act 2006.

It changes the requirement that statements or publications made are likely to be understood by those at whom they are directed to a test that they are likely to be understood by the reasonable person.

This means that the offence will now cover situations where statements or publications are made towards children or those who do not have the capacity to understand the remarks made.

Sentences for Terrorism Offences

The maximum sentence for some terrorism offences are increased. They are:

  1. Failure to disclose information about terrorism: doubled to ten years.
  2. Collection of information likely to be useful to a terrorist: increased from ten to 15 years.
  3. Eliciting, collecting or publishing information about the armed forces likely to be useful to a terrorist: increased from ten to 15 years.
  4. Encouragement of terrorism: more than doubled from seven to 15 years.
  5. Dissemination of terrorist publications: more than doubled from seven to 15 years.

Existing sentencing guidance will need to be reviewed in light of these changes.

How we can assist

If you need specialist advice, then get in touch with us on 0113 247 1477 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.

Legionnaires Disease – You Can Pay a Very High Price

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Faltec Ltd has been fined £1.18 million for two legionella outbreaks and a machine explosion after failing to comply with their Health and Safety obligations under the Health and Safety at Work Act 1974.

Initially the company was given a fine of £1.6 million, it was reduced slightly on their appeal against the sentence (Faltec Europe Ltd v HSE [2019] EWCA Crim 520).

Faltec pleaded guilty to three counts relating to a legionella infection in their employees, a legionella infection in the general public, and an exploding flocking machine that caused facial and other burns to an employee.

 

Legionella

The legionella had developed in their 22km water system which included “dead legs” – pipes that had been capped off to form a dead end. The system had been treated with biocides, but Faltec had failed to properly oversee the contractor they hired, leading to inadequate water treatment allowing the bacteria to grow.

There had been two separate outbreaks and five people, employees and the general public, had been infected. They were hospitalised and put in an induced coma. Thankfully, all recovered. This is perhaps lucky given that in a population of 10,000, easily imaginable in the area, four people will die from infection.

These outbreaks were the basis for two counts, leading originally to a fine of £800,000. That fine was reduced to £380,000 on appeal after the risk of harm was re-categorised from “High” to “Medium” with the Court of Appeal saying that a risk of death of 4 in 10,000 could not support the higher categorisation.

Legionella outbreaks could have been prevented by following the Approved Code of Practice for legionella, which would have meant “dead legs” were removed from the system. This would have been helped by proper records being kept of the water system itself.

Properly trained members of staff should have overseen the outsourced company’s work and kept documentation of standards and reviews carried out into the work being done.

 

Machine explosion

The flocking machine that exploded had been bought from their parent company cheaply, had no CE mark and lacked safety features meaning the door could be opened while it was active, causing the explosion in this case. This machine had caused previous fires. The employee injured had not been sufficiently trained on the machine.

Flock itself is highly flammable and applied using an electric charge in the machine. It is a dangerous substance under the Dangerous Substance and Explosive Atmospheres Regulations 2002.

The fine of £800,000 was upheld with the Court of Appeal endorsing the judge’s approach to move up to the next category in the sentencing guidelines because of the significant actual harm caused.

The flocking machine should have been adequately checked when it was installed. Only an “informal” system was employed, with no checks under the Dangerous Substance and Explosive Atmospheres Regulations 2002, or against any other safety standard.

 

Finances

Some points were made about the company’ financial position, reliant as they were on their parent company for financial support.

As in Tata Steel [2017] EWCA Crim 704, there was an “exceptional” basis upon the “economic realities” of the situation that meant the parent company’s finances could be considered.

This was based on statements in previous accounts that Faltec was dependant on loans from its parents, and a “debt for equity” swap in the most recent accounting period which meant Faltec continued to be wholly owned by the parent company. The judge was only entitled to have “some limited regard” however.

The Court of Appeal also commented that in assessing a company’s assets, any reserves put aside to pay an impending fine should be discounted so as not to discourage prudent reserving.

 

Postscript

The final point made was that the skeleton argument for Faltec was too long – 60 pages.

The Court of Appeal suggested the CrimPR be amended to reflect the requirements of the CPR PD 52C: a limit of 25 pages at 12-point font with 1.5 spacing. It should be noted that the CrimPD XII D.17 provides a limit of 15 pages with the same format, however.

 

How we can assist

If you need specialist advice on your Health and Safety obligations, then please contact us on 0113 247 1477 or email us at [email protected] and let us help.

We can advise on a plea, defences and potential sentences in a wide range of circumstances.

‘Hung Jury’ – Not as Bad as it Sounds

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Last week the Hillsborough trial involving ex-police officer David Duckenfield ended without reaching a conclusion; a number of papers reported that there was a ‘hung jury’ – so, what does that mean?

In an ideal world, a jury will reach a clear conclusion by either convicting or acquitting the defendant.

In a case with 12 jurors at least 10 must agree on the verdict, so if the numbers fall short, for example, 8 wanting to acquit, 4 wanting to convict, that is not an acceptable verdict.

If the jury indicates that they will not be able to reach a verdict in accordance with the law, the jury will need to be discharged.

In legal terms, this is often referred to as a ‘hung jury’.

 

What happens next?

The prosecution can apply to have the defendant tried again, and this is the outcome in most cases.

The decision is one for the trial Judge who will consider whether or not it is in the interests of justice for a retrial to take place.

Typically, the court considers questions which include (but are not limited to) whether the alleged offence is sufficiently serious to justify a retrial; whether, if re-convicted, the appellant would be likely to serve a significant period or further period in custody; the appellant’s age and health; and the wishes of the victim of the alleged offence.

If prosecutorial misconduct is alleged then other factors will come into play, analogous with whether it is an abuse of process to allow a retrial.

In most cases, the defence will not be able to properly resist the application, but we would always carefully consider all relevant factors and object if able to.

 

What happens if a new jury still cannot reach a verdict?

The usual practice in this scenario is for the prosecution to offer no evidence, although there are rare circumstances where a further retrial could take place.

 

How we can assist

We are specialists in all aspects of criminal law and procedure, if we can assist you with any criminal investigation or prosecution then please contact us on 0113 247 1477 or email us at [email protected] for assistance.

Are child-like sex dolls illegal?

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The Crown Prosecution Service has issued new guidance to prosecutors as to which offences may be committed regarding “child-like” sex dolls after more than 200 seizures by Customs Officers in the last two years.

 

The potential offences are:

1) Importing obscene articles.

2) Publishing an article for gain or not, or having an article for publication for gain, which is obscene.

3) Sending an obscene article by post.

 

Is it illegal to own or make a child-like sex doll?

No, there is no crime of making or possessing a childlike sex doll, it is the importation or sending that triggers a potential offence.

 

What does childlike mean?

There is no definitive guide to what “childlike” means but size, characteristics and description will all be considered – this goes to the issue of obscenity.

This is one of the most troublesome legal issues, as it will ultimately be a matter for a Judge or Jury to decide if the issue isn’t clear cut.

 

Does the doll have to be made for sex?

Yes, the doll must have been made for sexual use (as again, this gives rise to the obscenity issue). When deciding whether this is the case its design, accessories and advertised purpose will all be relevant.

 

What else has to be proved?

That depends which of the offences you are charged with. If it’s importing, it has to be proven that you knew it was unlawful to import them. If it’s one of possessing it for publication for gain, the prosecution will have to prove there would be some gain to be made.

 

How long could the prison sentence be?

That, again, depends on the charge. Importation offences have a maximum of seven years, publishing obscene articles carries a maximum of five years, and the postal offence a maximum of one year.

 

How we can assist

For full advice about these or any other offences, please contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.   

Appeals from Beyond the Grave

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The Court of Appeal has handed down judgment in the case of R v Max Clifford, the disgraced celebrity PR guru who was convicted in 2014 of a number of sexual offences and sentenced to 8 years imprisonment.

 

Clifford died in 2017, so why did the appeal proceed?

Section 44A of The Criminal Appeal Act 1968 provides that:

‘…any relevant appeal which might have been begun by him had he remained alive may be begun by a person approved by the Court of Appeal …’

Approval for the purposes of this section may only be given to:

(a) the widow or widower or surviving civil partner of the dead person;

(b) a person who is the personal representative (within the meaning of section 55(1)(xi) of the Administration of Estates Act 1925) of the dead person; or

(c) any other person appearing to the Court of Appeal to have, by reason of a family or similar relationship with the dead person, a substantial financial or other interest in the determination of a relevant appeal relating to him.

In Clifford’s case, the Court of Appeal consented to his daughter pursuing an appeal that was commenced before his death.

 

Was there any point?

An appeal, notwithstanding death, can potentially assist with two main objectives:

(a) Restoration of a person’s good character, and

(b) to assist in resisting civil claims.

There have been other appeals lodged to clear the name of someone long deceased, the most notable concerning Derek Bentley who was hanged for the murder of a policeman. After many different court challenges, he was finally granted a Royal Pardon.

An attempt to clear the name of infamous murderer Dr Crippen hit a stumbling block in 2009 when the Criminal Cases Appeal Commission refused to refer the case to the Court of Appeal.

The Criminal Cases Review Commission decided James Crippen was not a “properly interested person” in the case and there was no real possibility the Court of Appeal would hear it.

“Without an individual who has a real possibility of being approved by the Court of Appeal, there could be no court hearing and so no purpose would be served by the commission carrying out a review of the case,” said a CCRC spokesman.

 

Did the Clifford appeal succeed?

It didn’t, the court refused leave.

 

How We Can Assist

We are experts in criminal law, if you are concerned about a conviction or sentence, even if that is in relation to a person who is no longer alive, do not hesitate to contact us so that we can discuss your options.

Please contact us on 0113 247 1477 or email us at [email protected].

Bankruptcy – Time to Stop Digging

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For many people being declared bankrupt represents either personal and/or business failure, bringing with it feelings of embarrassment, shame and anxiety.

From a legal perspective, the story may not be over, as the law requires bankrupts to cooperate fully to maximise recoverable assets for creditors.

In this instance, it may be tempting to try and conceal with truth, with a view to salvaging something for themselves. This can be a costly mistake.

The Insolvency Act 1986 creates a number of distinct offences:

Section 353 – non-disclosure

Section 354 – Concealment of property

Sections 354-258 Concealment of books and papers; falsification

Sections 359-360 Fraudulent dealing with property obtained on credit

A defence of ‘innocent intention’ is available (s 352):

‘Where in the case of an offence under any provision of this Chapter it is stated that this section applies, a person is not guilty of the offence if he proves that, at the time of the conduct constituting the offence, he had no intent to defraud or to conceal the state of his affairs.’

Section 350(4) provides for extra-territorial reach in some respects:

‘It is not a defence in proceedings for an offence under this Chapter that anything relied on, in whole or in part, as constituting that offence was done outside England and Wales.’

 

Penalties

Heavy financial and custodial penalties often follow for breach, adding to the personal downfall of people who are in financial distress.

In R v Mungroo, Unreported 22 May 1997, the court endorsed the following observation when dismissing an appeal against a two-year sentence of imprisonment:

‘Those who stand to gain from the release of bankruptcy but conceal their assets try to have their cake and eat it. It attacks the whole basis on which the bankruptcy legislation is founded.’

The Court upheld a custodial sentence for a man of otherwise impeccable good character:

‘ …[Counsel] on his behalf invites the Court to say that an offence of this character does not cross the custody threshold. We wish it to be clearly understood that in all normal circumstances such conduct does cross the custody threshold. There can be nothing wrong in principle in marking that conduct with a sentence of imprisonment.’

‘We have considered anxiously [Counsel’s] submissions but at the end of the day we remain unmoved by them. We are satisfied not only that this offence demanded a sentence which crossed the threshold of immediate custody, but notwithstanding all the powerful mitigating features to be advanced on this appellant’s behalf, they were given proper and sufficient cognisance by the court in imposing the sentence passed. Accordingly this appeal against sentence must be dismissed.’

This case must however not be treated as any kind of sentencing guideline, and new guidelines on suspension of prison sentences must also now be considered. Our solicitors are acutely aware of the complexity of this type of proceedings, in both legal and personal terms.

 

How we can assist

If you are in any doubt at all as to your responsibilities as a bankrupt and whether the criminal law is engaged, or face investigation or prosecution, please contact us on 0113 247 1477 or email us at [email protected].

Parliamentary Crime

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There have been two entirely different crime stories in the news this week, but both will challenge the court to consider sentencing guidelines and how they ought to be applied.

Conservative MP Christopher Davies admitted two charges concerning expenses fraud. The sum of money concerned was relatively small, around £700, but it was a surprise to many criminal lawyers that the District Judge hearing the case sent the matter to the Crown Court for sentence.

The judge said he noted Davies was a man of good character who had shown “considerable remorse” and he did not gain financially from his actions. “However, in my view, these are two very serious offences to which you have pleaded guilty,” he said.

“The documents you created are troublesome in that they carried a deal of information that you put together which absolutely intended to deceive.”

Zani said that as an MP, a position of considerable responsibility and trust, there was a need to be “meticulous in your claims”.

When we look at the sentencing guideline for fraud it will tend to suggest that the courts sentencing powers were more than sufficient, so, did the Judge get it wrong?

We will have to see what the Crown Court decides in a few weeks, but it may well be that the Judge had in his mind the case of Chaytor [2011] EWCA Crim 929 involving another MP convicted of fraud at the height of the expenses scandal. The court concluded by saying:

‘It is difficult to exaggerate the levels of public concern at the revelation of significant abuse of the expenses system by some Members of Parliament. Some of those elected representatives, vested with the responsibility for making the laws which govern us all, betrayed public trust.

There was incredulous consequent public shock. The result was serious damage to the reputation of Parliament, with correspondingly reduced confidence in our priceless democratic system and the process by which it is implemented and we are governed. This element of damage caused by the appellant (and others) cannot be valued in monetary terms, but it is nonetheless real, and the impact of what has been done will not dissipate rapidly.’

Given what the Court of Appeal has said concerning parliamentary expenses fraud it should come as no surprise that offences of this type will be treated much more seriously than an ‘ordinary’ fraud.

Our second case concerns Jeremy Corbyn, the Labour Party leader. On 25th March John Murphy pleaded guilty to common assault, having earlier hit Corbyn with an egg.

Being hit with an egg might have once been seen as a political right of passage, but this must now be seen in the light of a much more volatile environment in politics.

In a victim impact statement Corbyn wrote:

‘“I was shocked and surprised when the assault occurred as I have always felt safe and secure at the Muslim Welfare House. The assault was completely unprovoked and threatening.

Whilst I’m determined to make sure I’m able to interact with people as I always have, I now have to be more cautious. I feel these kinds of attacks drive a wedge between elected representatives and those who elected them in the first place. We are now reviewing and increasing my security protection.”

The Senior District Judge stated that:

“This is a public servant and attacks on MPs must stop. The message must go out – this must stop.”

Sentencing Murphy to 28 days imprisonment the Judge said:

“An attack like this is an attack on the democratic process”.

She ruled Corbyn is vulnerable, the attack was premeditated, and the effects have been wide-ranging.

Ordinarily, this type of assault would not justify a custodial sentence, but these are not ordinary times.

Both cases illustrate that sentencing guidelines must always be seen as a mere starting point in judging the likely sentence. All relevant circumstances must be understood, and an advocate who goes into court underestimating the broader social and political climate is likely to do their client an injustice.

How we can assist

We can assist with any criminal law related matter. Please contact us on 0113 247 1477 or email us at [email protected].

McKenzie Friends: When saving money can cost you a fortune

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The unimaginable has happened: you’ve been convicted of a crime you didn’t commit.

The lawyers at your trial have told you that there is no hope of an appeal. You can’t afford more legal advice so you decide to look for a cheaper alternative. Surely there must be someone who can help? Perhaps that friend from university who studied law? Or someone who’s website says they are “cheaper than a solicitor or barrister, but just as effective”?

Think very carefully before hiring someone legally unqualified to conduct your case. As Paul Wright recently found out, it can cost you dearly.

Mr Wright was injured in 2004 when three plastic bags were left inside him during an operation. He hired a “McKenzie Friend”, George Rusz, to support him during his claim and ended up with only £20,000 in damages from the NHS.

Worse still – he had to pay £75,000 in costs to the NHS because of the incompetent way Mr Rusz had conducted the case, meaning despite winning he had to pay out £55,000.

Fortunately, Mr Wright recovered those costs and the damages he should have got after he sued Mr Rusz for giving negligent advice. He was awarded £336,759 in total. This finally came fifteen years after his injuries.

But he may be out of pocket for a lot longer – if Mr Rusz can’t, or won’t, pay it could be years before he sees that money, if at all.

If you were to use a McKenzie Friend, or any unqualified person, in conducting a criminal appeal, the consequences might be worse than a financial loss. The Court of Appeal has the power to order, in appeals without merit, that some time already served should not count towards your sentence. You may also face a hefty claim for prosecution costs.

McKenzie Friends have a legitimate and useful purpose when they stick to their role – providing moral support, taking notes, and giving advice in court – and do it competently.

Before instructing a person to assist with your case ensure that they are properly regulated and insured – if in doubt, check it out.

How we can help

If you need specialist advice, then get in touch with us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on all aspects of criminal law.

Tina Malone – when sharing a picture can have you sent to prison

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The murder of James Bulger in 1993 shocked everyone. That the killers who committed such a violent crime were only ten years of age was astounding.

Many people, rightly, felt they should be punished to the full extent of the law. But some people think that the punishment should go further.

As a result, Jon Venables and Robert Thompson were in danger of being hunted by vigilantes who thought that they should suffer the same fate as their victim.

This led the High Court to take the extraordinary step of imposing an injunction, a ban, in the case of the two boys.

Nothing about them, except for some specific pictures and details, can be published by anyone. Ever.

Anyone who breaches the order commits a ‘contempt of court’ and faces a prison sentence of up to two years.

Some people, including Tina Malone, who has appeared on TV in Shameless and Brookside, share pictures anyway. She was lucky to avoid prison, being given an eight-month suspended sentence and ordered to pay £10,000 costs.

She is not the only person to be prosecuted. In 2001, the Manchester Evening News was fined £30,000. In 2010 a man received a three-month suspended sentence. Earlier in 2019, two people were given twelve and eight-month suspended sentences.

Broadly, the ban is on:

  • any depiction, image in any form, photograph, film or voice recording made or taken on or after 18 February 1993, which purports to be of Jon Venables or Robert Thompson or any description which purports to be of their physical appearance, voices or accents at any time since that date.
  • any information purporting to identify any person as having formerly been known as Venables or Thompson; or any information purporting to describe their past present or future whereabouts, including alleged residential or work addresses and telephone numbers.

The list of things that can be published is short. Their real names, pictures taken at or before their arrest, the detention centres where they were held as youths, Jon Venables other convictions, and the fact that before he was returned to prison in 2010, he was living in Cheshire. Nothing more.

Anything else, even if the pictures are not actually of either of them, is banned. This is to protect people who are wrongly identified from harm. In 2010, a man had to install a panic button in his home after he was mistakenly identified as Venables.

Breaches of the injunction are taken very seriously. Contempt of Court proceedings are brought in almost every case.

How we can assist

If you need specialist advice, then please contact us on 0113 247 1477 or email us at [email protected].