The Pizza Alibi

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On 10th March 2001, HRH Prince Andrew is alleged to have met and been photographed with a lady who has accused the Prince of sexual misconduct.

In a BBC interview, Prince Andrew throws ridicule on that suggestion and throws up two interesting observations in an attempt to establish an alibi:

“On that particular day that we now understand is the date, which is 10th March, I was at home, I was with the children and I’d taken Beatrice to a Pizza Express in Woking for a party at I suppose sort of four or five in the afternoon.

“…and then because the duchess was away, we have a simple rule in the family that when one is away the other one is there.”

Understandably, a member of the Royal Family may well remember a trip to Pizza Express, usual for the rest of us, but perhaps not a typical dining arrangement for the privileged few.

 

So, how does this stack up as an alibi?

In law, an alibi is defined as follows:

“…evidence tending to show that by reason of the presence of an accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.”

The fundamental problem with Prince Andrew’s account is that this alibi can only recover what must have been a relatively short period of time, the journey to/from (about 40 mins each way assuming the Prince was at his Windsor home) and time at the party itself (imagine 2 hours), so in total may be no more than 4 hours or so. 

Unless the timing of the allegation is such that it corresponds precisely with the time Prince Andrew claims to have been in Woking, this is evidentially of little significance.

The next part of his account is also an alibi and amounts to a not unreasonable claim that he was at home (presumably looking out for the children, although he neglects to say this) because his wife was away.

Again, as a starting point, this is not at all unreasonable, but we have a direct contradiction of accounts and a photograph which has not been established to be anything other than genuine at the moment. 

This clash of accounts would need to be tested by a jury.

In short, mere assertions of alibi tend to be almost worthless. A robust defence strategy would nail down the times, and look for corroborative evidence. A prosecutor might easily find numerous occasions where both family members are away and ask about childcare arrangements – it is by no means unusual for members of the Royal Family to employ staff to look after children.

Regrettably for the Prince, his TV interview established nothing over and above a bare denial, which he had already given. 

When our clients come to give an account on such a vital issue such as alibi, we ensure that a robust and detailed case is presented to the court. 

When reputation and liberty are at stake, you should leave nothing to chance.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. 

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

Lies and Easy Money

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In a case this week involving Jet2 Holidays, Karl and Laura Hughes claimed that they had suffered sickness while on a package holiday. They said they had food poisoning as a result of eating contaminated food or drink or swimming in the hotel’s unsanitary pool. In witness statements, Mr & Mrs Hughes said that they became ill on the second day of their holiday and were acutely ill for the remainder of the holiday. The witness statements were sent to Jet2 with an initial letter of claim.

Jet2 looked at the social media accounts of Mr and Mrs Hughes. They saw photos and comments posted by them during the holiday, indicating they were physically well while away and had enjoyed their holiday. As a result, Mr and Mrs Hughes did not start proceedings against the company. 

Jet2 however, decided to ask the court to start contempt of court proceedings against Mr & Mrs Hughes. This was on the basis that the witness statements were false, relying on the social media posts.

Mr & Mrs Hughes denied that the information in their statements was false. They made further statements setting out that they had complained to the hotel manager, and despite their illnesses, they had “put up a front” that they were having a great holiday. The social media posts were not a true reflection of their mood at the time.

Initially, a court decided that proceedings for contempt of court could not be brought as the statements had not been served as part of court proceedings. A higher court did not agree saying that the test was whether the conduct in question involved an interference with the administration of justice either in a particular case or more generally as a continuing process.

The court went on to say that even though Mr & Mrs Hughes had not yet started proceedings when the statements were sent that they were still capable of interfering with the administration of justice. 

The issue of whether Mr & Mrs Hughes were in contempt of court has not yet been decided, but Jet2 now have permission to bring those proceedings. The moral of the tale is just because something does not happen “in court” does not mean that you cannot be in “contempt of court”.

 

What could happen?

If Mr & Mrs Hughes are found guilty of contempt of court, they could be sent to prison for up to 2 years or receive a fine.

It can be very tempting to make a false claim against an insurer, but they are now fighting back in the civil courts. In addition, you could face criminal prosecution for fraud, leading in some cases to a prison sentence and criminal conviction.

 

How can we help?

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

Tracking violent offenders

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A pilot is being carried out into electronic monitoring global positioning system. The aim of the pilot is to gain information to look at how existing and new electronic monitoring technologies could be used more effectively. A specific pilot is also taking place in London for offenders who have served a custodial sentence for knife crimes.

 

What is the pilot for knife crime offenders?

The pilot began in February 2019 and is now being expanded from 4 to 24 boroughs of London with up to 300 offenders able to be tagged in the 12-month pilot. The pilot is due to end in April 2020.

Eligible offenders are those who are released from prison following sentencing for offences such as possession of a knife, robbery, aggravated burglary and grievous bodily harm. The offender must be over 18 and released from a London prison to suitable accommodation in a pilot area. The tagging is used as part of strict licence conditions.

 

Hasn’t the tag been around for ages?

The tag that is commonly referred to is a tag to monitor a curfew. A curfew is monitored through radio frequency technology and does not track location. Such a tag is frequently used as part of bail conditions and on release from prison sentences.

 

What is the difference?

A global positioning system (GPS) tag is a location monitoring enabled tag. A person’s location is captured 24 hours a day. It can also be used to monitor a specific area such as an exclusion zone where active monitoring only takes place if there is a breach of that condition.

 

How does it work?

A tag worn around the ankle is worn 24 hours a day, and a satellite signal can accurately pinpoint the wearer’s location. They are designed to be difficult to remove, and if it is removed, an alert is generated to a monitoring centre. The location monitoring is carried out in live time, and the alerts in the event of a breach are immediate so that appropriate action can be carried out. This means that high-risk offenders can be prioritised for an emergency response.

 

How is the information used?

An offender’s movements will be checked against the location of reported crimes or areas he is not permitted to be in as part of the licence conditions. It was also be used statistically to improve crime detention, monitor attendance at locations such as drug testing and rehabilitation activities and to enforce restrictions such as exclusion zones.

As well as being able to check that a person is where they should, or shouldn’t, be, monitoring can be used to assess behaviours and routines. An offender’s probation officer can use the information to see how that person is spending their time and how this impacts on their behaviour or possibility of further offending. The Probation Service can be provided with daily “heat maps” of addresses visited by the offender and can be used to challenge their lifestyle choices.

 

Previous issues with tags

Earlier this year Serco was fined nearly £23 million by the Serious Fraud Office under a deferred prosecution agreement for offences of fraud and false accounting. The company had understated the level of profitability of its electronic monitoring contract in reports to the Ministry of Justice. The investigation began in 2013 when Serco paid £70 million in compensation to the government and lost their contract. Serco and G4S faced allegations of charging the government for electronically monitoring people who were dead, in jail or out of the country.

 

How can we help?

We can advise on all aspects of criminal investigation and prosecution. 

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

General Election 2019 – Don’t Get Caught Out

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The parliamentary session has come to an end, and we will go to the polls on 12th December 2019 to decide the political makeup of the next parliament.

The Representation of the People Act 1983 creates a number of offences concerned with political elections and those engaged in political party management should receive detailed training in this regard.

 

But what happens if people fall foul of the law?

The guideline case in this area is Hussain [2005] EWCA Crim 1866, where the following observations were made.

 

Why election offences are so serious?

‘Among the most important features of the way of life in this country is, first, the fact that this country is a democracy. It has a form of government based upon the principle that, subject to limited exceptions, each individual member of the public is entitled to a single vote to elect the government of the day, whether national or local. In this process of election every vote should be of equal value. The second feature is that, although we have no reason for complacency, the government in this country (both national and local) is usually free from any form of corruption. The third feature to which we draw attention is that the principles to which we have already referred are every bit as much as important in the case of local government as they are in the case of central government.’

 

The danger to democracy

‘If in a democratic society the electoral system is contaminated by corruption or fraud, it will be rendered worthless. It is the responsibility of the courts and our justice system as a whole, so far as it is within the courts’ jurisdiction, to protect the country’s electoral system. This is a responsibility to which the courts must attach the greatest of importance.’

 

The need for deterrent sentences

‘Having regard to the nature of those offences, it was of importance that the punishment that was passed was one which would deter others from committing offences of that sort. Even a deterrent sentence has to be proportionate to the offence and not unjust in relation to the offender. However, a deterrent sentence is passed by the courts with the primary object of deterrence.’

 

Age and good character of limited mitigation, possibly aggravating the offence in some cases

‘… the circumstances of the offender, such as the fact that in this case the applicant is now aged 62 and suffers from angina, become of significantly less importance. So does the fact that hitherto he had been a leader of the community to which he belonged and that he was regarded by those in the community who knew him as being entirely estimable. Indeed the very fact that he had this reputation within the community meant that it was easier for him to commit these offences. No doubt if his name had not been associated with the election in the way that it was, it would have been more difficult for those who were acting on his behalf to persuade people to entrust their voting papers to their custody. The applicant took advantage of members of his own community who were less educated and less able to protect themselves than the majority of the electorate in this country. They did not understand what they were doing when they handed over the papers. He used others to carry out his fraudulent intentions. By doing so they became part of a conspiracy to undermine the electoral system. These were calculated offences.’

 

Actual Sentences Imposed

In the case of Hussain (above) a sentence of 3 years 7 months was imposed for large-scale election fraud.

In Fadaka (2015) which concerned a false statement concerning candidate eligibility, 12 months suspended sentence was quashed and 6 months immediate term imposed instead.

And finally, in Khan (2009), another fraud case in relation to ‘ghost voters’, the court commented that the appellants were wise not to appeal sentences of 42 and 54 months.

The clear message from the Court of Appeal is that election fraud offences will be treated extremely seriously and immediate custody is almost inevitable.

 

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.

Investigating Death

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Cases involving the death of a person can have a devastating impact on all concerned. From our perspective, we often deal with people facing the gravest charges after an incident causing loss of life. The gravity of the proceedings can have a devastating emotional impact on our client and their family.

At the same time, all parties will be acutely aware that those others will be grieving after loss and expecting the justice system to deliver some form of closure for them.

A complex issue that often arises is concerning the question of a second post-mortem, often essential so that the defence can probe and question any initial findings, seek out any error and test any alternative hypothesis. 

On occasion, the causative issues surrounding death are not in dispute (for example in many road traffic cases) and the Coroner can arrange for the speedy release of a body so that funeral rites can take place. In other cases, the issues can be far more complex, particularly in cases involving infant death, or where complex case theories have been developed by the prosecution (such as alleged killings in a hospital or other environment).

In all cases, we act in the best interests of our client but do so in a considerate and sensitive way, as anyone would rightly expect. When a second post-mortem is necessary, we will request that it be undertaken as soon as practicable.

A particular problem that some suspects can face is the funding of second examinations pre-charge. Unless the suspect is eligible for legal aid, and a great many people are not at this stage of the proceedings, any investigation may need to be funded privately, or via a request to the Coroner. This is an issue that we feel urgently needs addressing as it can contribute to considerable delay, which is not desirable for anyone concerned.

The Senior Coroner issued long-overdue guidance concerning requests for second post-mortem examinations as recently as September 2019. 

We keep such guidance very much in mind but will not hesitate to forcefully advance any case for a second post-mortem examination where we feel it is in our client’s best interests to pursue it.

 

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

Unduly Lenient Sentences – Scheme to Be Extended

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The government has announced changes to the Unduly Lenient Sentence (‘ULS’) Scheme.

There are certain offences where the prosecution (via the Attorney General) can ask the Court of Appeal to review a sentence if it is thought to be unduly lenient.

Any person can ask the Attorney General to consider a sentence and decide whether or not to refer the case to the Court of Appeal.

The referral must be made within 28 days, but this period often creates a period of uncertainty and stress for an offender who has been sentenced. In some instances, a successful referral can result in a person who has been given a non-custodial sentence, being sent to prison.

The cross-Government Victims’ Strategy published on 10 September 2018 contained a commitment to keep under review and consider extending the scheme to additional offences related to stalking and harassment; indecent images of children and sexual offences. 

The proposed change will fulfil this commitment by amending the Reviews of Sentencing Order to include the further fourteen serious sexual and violent offences. 

The inclusion of these offences relating to sexual offending, intimidation and abuse within the ULS scheme is intended to reflect the serious and long-lasting damage they have on victims and survivors. This also rectifies a discrepancy whereby a large number of sexual offences committed against children were included in the scheme, but offences committed by people in positions of authority, and offences committed against people with a mental disorder impeding choice, were not. 

The new offences that are eligible for review are:

  • section 1 of the Protection of Children Act 1978 (indecent photographs of children)
  • section 160 of the Criminal Justice Act 1988 (possession of indecent photograph of child)
  • section 4 (putting people in fear of violence) or section 4A (stalking involving fear of violence or serious alarm or distress) of the Protection from Harassment Act 1997
  • section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship)
  • section 16 (abuse of position of trust: sexual activity with a child);
  • section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity)
  • section 18 (abuse of position of trust: sexual activity in the presence of a child)
  • section 19 (abuse of position of trust: causing a child to watch a sexual act)
  • section 26 (inciting a child family member to engage in sexual activity);
  • section 30 (sexual activity with a person with a mental disorder impeding choice)
  • section 31 (causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity)
  • section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice)
  • section 33 (causing a person, with a mental disorder impeding choice, to watch a sexual act).

The Criminal Justice Act 1988 (Reviews of Sentencing) (Amendment) Order 2019 also rectifies two previous oversights. It adds in the attempt to commit, and the incitement, encouragement or assistance in the commission of, the two modern slavery offences to paragraph 2 of Schedule 1 via the Modern Slavery Act 2015 (Consequential Amendments) Regulations 2015. This Order also clarifies that the offence of causing racially or religiously aggravated harassment, alarm or distress under section 31(1)(c) of the Crime and Disorder Act 1998 is not in scope of the scheme, as it is a summary-only offence.

 

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. 

Getting Tough on Health and Safety

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A number of recent cases indicate an increasingly robust approach to health and safety law breaches.

Company Director Robert Harvey was imprisoned for ten months following an accident where a fellow worker was crushed to death by an excavator operated by Harvey. The prosecution established that Harvey had failed to undertake a sufficient risk assessment for employees working on the building project, had not had training in the correct operation of the excavator equipment and gave a dangerous instruction to a fellow worker. Harvey Robert Harvey pleaded guilty to breaching Section 7(a) and Section 33(1)(a) of the Health and Safety at Work Act 1974.

DHL, the global logistics firm was fined £2.4 million following a collapse of tyres that crushed to death an employee. Once again, the lack of a proper risk assessment was emphasised by the prosecution. A year earlier DHL had been fined £2 million for another significant health and safety breach.

Ferry Operator Stena Line was fined £400,000 following an incident where a worker suffered severe injury. The Health and Safety Executive commented:

“The injuries sustained…were easily preventable. The risks to pedestrians from moving vehicles is an obvious one which should have been identified and controlled. Had Stena Line Limited employed suitable control measures the life-changing physical and emotional injuries which continue to impact [the victim] and his family would have been avoided.”

These cases demonstrate that liability can fall on both individuals and corporate bodies, meaning that everyone involved in company management must remain alert to their responsibilities.

For individuals a custodial sentence is a real possibility.

Financial penalties imposed on companies are intended to have real impact:

“The fine must be sufficiently substantial to have a real economic impact which will bring home to both management and shareholders the need to comply with health and safety legislation” (Sentencing Guideline).

In finalising the sentence, the court should have regard to the following factors:

  • The profitability of an organisation will be relevant. If an organisation has a small profit margin relative to its turnover, downward adjustment may be needed. If it has a large profit margin, upward adjustment may be needed.
  • Any quantifiable economic benefit derived from the offence, including through avoided costs or operating savings, should normally be added to the fine. Where this is not readily available, the court may draw on information available from enforcing authorities and others about the general costs of operating within the law.
  • Whether the fine will have the effect of putting the offender out of business will be relevant; in some bad cases this may be an acceptable consequence.

We have a team of experienced solicitors able to assist you with any aspect of health and safety law, and it is important to involve us as soon as any investigation is commenced.

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.

Terrorism Offences – Tougher Sentences on the Way

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The Sentencing Council is consulting on revised sentencing guidelines for several terrorism offences. This is on the face of it a surprising move given that a definitive guideline was only recently implemented.

The main legislative changes impacting the guidelines include increases to the statutory maximum sentences for some offences and an expansion of some offences. 

As a result of the increases to statutory maximum sentences, the Council is proposing consequential increases for the most serious examples of offending.

The main changes include: 

  • Amendment to the culpability factors in the Proscribed Organisations – Support (section 12 Terrorism Act 2000) guideline to provide for offenders convicted of the new section 12(1A) offence of expressing supportive views for a proscribed organisation, reckless as to whether others will be encouraged to support it; 
  • Amendment to the culpability factors in the Collection of Terrorist Information (section 58 Terrorism Act 2000) guideline to provide for offenders convicted of the new offence of viewing/streaming terrorist information over the internet; 
  • Changes to the sentencing tables in the Encouragement of Terrorism (ss1 and 2 Terrorism Act 2006); Failure to Disclose Information About Acts of Terrorism (s38B Terrorism Act 2000), and Collection of Terrorist Information (s58 Terrorism Act 2000) guidelines to reflect the changes to the statutory maximum sentences;
  • Additional guidance added to the Encouragement of Terrorism (sections 1 and 2 Terrorism Act 2006); Proscribed Organisations – Membership (section 11 Terrorism Act 2000); Proscribed Organisations – Support (section 12 Terrorism Act 2000); and Collection of Terrorist Information (section 58 Terrorism Act 2000) guidelines as Terrorism offences guideline, consultation 2 these offences now fall within scope for sentences for offenders of particular concern; 
  • Additional guidance added to the Preparation of Terrorist Act (s5 Terrorism Act 2006); Encouragement of Terrorism (sections 1 and 2 Terrorism Act 2006); Proscribed Organisations – Support (section 12 Terrorism Act 2000); and Collection of Terrorist Information (section 58 Terrorism Act 2000) guidelines as the new legislation made these ‘specified terrorism offences’ for which extended determinate sentences would apply. 

In addition, the Council has chosen to make some minor changes to the Funding guideline to assist Judges to sentence cases where either the offender had knowledge that the money or property would or may be used for terrorism, or where the offender did not know or suspect that the money would or may be used for terrorism. This is an issue that has been raised in case of law recently and so the Council has chosen to take this opportunity to assist sentencers by providing greater guidance.

What will be the impact on sentence length?

Overall, under the draft guideline, sentences are anticipated to increase in some cases, however, any increase in sentence lengths will be a result of the recent legislative changes, rather than the guideline. The revised sentencing guideline, therefore, aims to ensure that future sentencing for terrorism offences is in line with the intention of Parliament when it increased the maximum penalties for some of these offences, while at the same time ensuring consistency of sentencing for these offences. 

As ever, we will remain vigilant and ensure that all guidance is properly adhered to. As the sentencing process becomes ever more complex our advocates are careful to guard against inadvertent error.

The new guidelines are expected to come in to force around April 2020.

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.

Stop and Search

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The police, with the support of the Home Office, are making more extensive use of stop and search powers. This new approach is partly due to rising public and political concern about knife crime.

A hitherto little-used power to extend the use of stop and search is now being widely used by police forces.

Section 60 of the Criminal Justice and Public Order Act 1994 allows for stop and search powers to be exercised across a particular area, for a period of 24 hours (but see below). This power removes the usual restrictions on stop and search.

 

A section 60 order can be triggered if:

…a police officer of or above the rank of inspector reasonably believes—

(a) that incidents involving serious violence may take place in any locality in his police area, and that it is expedient to give an authorisation under this section to prevent their occurrence, that—

(i) an incident involving serious violence has taken place in England and Wales in his police area;

(ii) a dangerous instrument or offensive weapon used in the incident is being carried in any locality in his police area by a person; and

(iii) it is expedient to give an authorisation under this section to find the instrument or weapon; or

(b) that persons are carrying dangerous instruments or offensive weapons in any locality in his police area without good reason.

 

In August 2019 the government announced that a previously restricted use of section 60 was to be extended to all 43 police forces in England and Wales.

The statutory basis of section 60 searches is modified in several ways by ‘best practice’ guidance:

  • Raising the level of authorisation for the initiation and extension of s60 powers to senior officer; 
  • Raising the level of suspicion from believing that, in the anticipation of serious violence, incidents involving serious violence will take place rather than may; 
  • ensuring that section 60 stop and search is only used where it is deemed necessary – and making this clear to the public; 
  • limiting the duration of initial authorisations to no more than 15 hours (down from 24); and limiting the duration of subsequent extensions to, first, 9 hours and, second, 15 hours to a total of 39 hours (down from 48); and 
  • communicating to local communities when there is a s60 authorisation in advance (where practicable) and afterwards, so that the public is kept informed of the purpose and success of the operation.

Despite the noble aims of a policy designed to reduce possession of weapons, there has been a concern that some communities will be disproportionately targeted as a result.

BAME and Black individuals in 2017/18 were four and nine and a half times more likely to be searched than white individuals. BAME individuals have also been found to be more likely to be dissatisfied than white individuals with the conduct of searches, according to analysis of CSEW data 2009-11. The number of BAME individuals searched has fallen dramatically between 2010 to 2018 (Searches of BME from 431k to 98k.) but disparities have risen as the number of white people searched has fallen more dramatically. 

National data on s60 searches consistently shows that BAME individuals, and black individuals especially, are more likely to be the subject of s60 searches than white individuals. The likelihood statistics are calculated by comparing the ethnicity of those searched, based on their self-defined ethnicity, with the characteristics of the population as a whole, based on data taken from 2011 Census. In 2017/18, BAME individuals were just under 14 times more likely to be stopped and searched under s60 than white individuals. 

In an equality impact assessment published this week, the government acknowledged this risk:

“In our assessment of the current use of s60, it was concluded that there was not sufficient grounds to discount the possibility of some level of discrimination – either towards individuals, or systematically in the policing of certain communities – as an explanatory factor for existing rates of disparity. As such, any increases in the use of s60 pose the risk of magnifying any residual levels of discrimination in the use of this power. We would also expect, given that individuals from BAME backgrounds are more likely to be searched, that any increases in s60 would continue to disproportionately affect them. We have no evidence to indicate whether disparity rates would increase or decrease following a relaxation of current arrangements.”

The government proposes to keep the policy under review and assess the impact in 12 months.

It remains the simple fact that police powers must comply with all laws, as defence solicitors we will not hesitate to challenge the unlawful use of police powers, and seek evidential remedies in appropriate cases, this may include applications to exclude any evidence obtained as a result of illegal searches.

 

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.  

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; https://creativecommons.org/licenses/by/2.0/ )

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.