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.

Jury Challenge

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It is a common feature of American courtroom drama that a defence attorney moves to remove a juror that they do not like the look of. Many clients wonder whether the same type of challenge can take place in an English courtroom.

The Jury Pool

In some circumstances there can be a challenge to the entire jury pool, this can happen in cases where local emotion is running so high that it would not be appropriate to try the case at the usual crown court centre. 

An example of this was the trial of Jon Venables and Robert Thompson, who were later convicted of the murdering two-year old Jamie Bulger in Merseyside. Their hearing was held not in the usual place, Liverpool Crown Court, but Preston.

In other cases there may be challenges to jurors with a particular characteristic, so in the Hillsborough trial that took place earlier in 2019 the 100 potential jurors were handed a questionnaire asking for any reasons why they cannot sit on the jury, including potential links to the disaster, victims, police or criminal justice agencies.

They were also asked whether they or any close family members or friends were fans of Liverpool, Everton, Sheffield Wednesday or Nottingham Forest football clubs.

It is quite usual in trials for potential jurors to be read a list of witnesses in the case, to ensure no juror with a personal connection is sitting.

There can be no challenge to the array of a jury, so for example because it is all-male, or lacking in racial balance.

Challenging an individual juror

A challenge to an individual juror is referred to as a ‘challenge for cause’ (section 12 Juries Act 1974). Challenge can be made both by prosecution and defence (there is also a prosecution power to ‘stand by’ a juror, but this is not considered in this article).

A challenge can be on the basis that the person is not eligible for jury service or for some other reason (the right to challenge without cause was abolished some years ago).

A challenge should be made before the juror is sworn, although the court has permitted a small degree of latitude (R. v. Harrington, 64 Cr.App.R. 1, CA.)

In practice, a successful challenge for cause is very rare. 

Should we be concerned about juror bias?

Many people make observations about jury composition; an example we hear regularly is that a female jury is more likely to acquit in a rape case. 

In truth, we do not know whether this and other claims are valid or not given the lack of research into jury decision making. 

In our view, minds should be focussed much more on first-class case preparation and advocacy rather than abstract notions of perceived juror bias, particularly when there is not a great deal that can be done about it anyway.

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.

The Cut-Throat Defence

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A cut-throat defence is where one defendant gives evidence that is damaging to a co-defendant’s case, sometimes going as far as directly accusing the other person of the crime, while typically seeking to exonerate themselves.

Such evidence may be given directly by a defendant (or more than one in some cases) as a positive aspect of their case or elicited by prosecution questioning. Either way, it can make for an uncomfortable moment during the case when one defendant is pitted against another, particularly if issues of bad character arise because of it. 

The conventional view is that cut-throat defences rarely end well, although in reality, that is a generalisation too far, and the outcome will always depend on a multitude of factors.

Where a cut-throat defence is anticipated or encountered, thought will be given to the issue of severance – or separate trials. These applications are not always successful in practice, as explained in Varley [1982] 2 All ER 519:

‘The other ground put forward was that the judge wrongly exercised his discretion by refusing to order separate trials. We recognise that there may well be occasions where there has been a successful application to cross-examine a co-defendant on his convictions and the trial judge, in his duty to ensure a fair trial, may properly exercise a discretion to order separate trials. We have in mind the situation whether the effect of such cross-examination is such as to create such undue prejudice that a fair trial is impossible. But that is not this case. The truth of the matter is that this was a case where two experienced criminals metaphorically cut each other’s throats in the course of their respective defences. If separate trials had been ordered, one or other or both might have succeeded in preventing a just result.’

While a separate trial may not seem a likely outcome, some lawyers mistake the case law to such an extent that they rule out the argument completely; we feel that to be an inadequate approach and ensure that scrutiny is applied in all instances (see cases such as R v O’Boyle (1991) 92 Cr App R 202).

Relevant arguments will centre around:

  1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against the other accused to be jointly tried with him, and
  2. Where the evidence against those other accused contains material highly prejudicial to the applicant though not admissible against him, and
  3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material.

At the opposite end of the spectrum, it may be the case that you have to run a cut-throat defence and consideration will have to be given to the consequences, both positive and negative, of doing so.

Criminal litigation is increasingly complex, and you must instruct a legal team able to work through all the issues that might arise and provide a strategy for dealing with them. The emphasis is always on proactive rather than merely reactive trial strategies.

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.

Solicitors, Charlatans and the Internet

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We interchangeably use many terms to describe legal professionals: lawyers, solicitors, legal advisers, attorneys (an Americanism), a ‘brief’. There are countless others in common usage.

Regrettably, this flexibility with language allows for confusion, and when viewing many legal websites, you would be forgiven for thinking that you are dealing with a qualified legal professional, when in fact nothing could be further from the truth.

The distinction between a ‘real’ solicitor and anyone else is necessary. 

A solicitor is a highly qualified legal professional, regulated by the Solicitors Regulation Authority (‘SRA’) and admitted by the Law Society. 

Crucially, there is insurance in place so that if anything does go wrong, there is full protection, and of course an adherence to the highest ethical standards. 

When dealing with persons employed and supervised by solicitors, these same protections apply.

Ironically, it is not always the case that unregulated people charge less in fees, so not only is there an inferior service offered, it often comes at a higher price.

The title of “solicitor” is protected under section 21 of the Solicitors Act 1974:

“Any unqualified person who wilfully pretends to be, or takes or uses any name, title, addition or description implying that he is, qualified or recognised by law as qualified to act as a solicitor shall be guilty of an offence and liable on summary conviction to a fine not exceeding the fourth level on the standard scale.”

Section 20 of the same Act states:

“No unqualified person is to act as a solicitor.”

An offence under section 20 carries up to 2 years imprisonment, and custodial sentences are the norm, underlying the seriousness of the matter.

Some areas of legal advice are ‘reserved activities’ which means that even if a person does not pretend to be a solicitor, they are prohibited from acting in those matters.

The simple way around this confusion is always to check that you are dealing with a real solicitor. 

You can check whether you are dealing with a real firm by using the SRA website, ensure that any site visited is the actual web address for the firm concerned, you should also check the postal address, email and telephone numbers as the copying of real websites is another problem at the moment.

 

How to check:

https://www.sra.org.uk/consumers/find-use-instruct-solicitor/law-firm-search/

 

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.  

Drugs, Prisons and Sentencing

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With many offences, the punishment may vary according to the context of the criminality.  By way of example, violence in a domestic context will generally be treated more harshly than the same level of harm against a stranger (absent other aggravating features).

The same is true of drugs offending, and particularly when it involves prisons and prisoners. 

A failure to understand this fundamental point may result in clients being given incorrect advice concerning likely sentence. An attempt to ‘over mitigate’ and suggest an unrealistic penalty can often backfire, with the court losing sight of other valid points made in mitigation.

In a recent case, a man pleaded guilty to taking three relatively small drugs packages into prison, at the request of his cousin. In the packages were cannabis resin, cannabis bush and 20 steroid tablets.

In passing sentence, the judge observed that anyone involved in smuggling items of this sort into a prison commits an offence that passes the custody threshold by a significant degree. 

He also relied upon the previous authorities of the Court of Appeal and said that it had been made abundantly clear that “the smuggling of drugs into prison undermines the order of our custodial institutions and causes problems for those who are responsible for supervising prisons and looking after the welfare of inmates.” 

That is a view with which the appeal court re-endorsed on this occasion.

When considering a sentence of 18 months’ imprisonment, the advocate on appeal sought to invoke the drugs sentencing guideline, which when applied in isolation suggests that a sentence of 18 months is manifestly excessive. 

Under that guideline, this offence would fall into the significant role Category 4 part of the guideline, and therefore, the starting point should have been a high-level community order.

The Court of Appeal, when rejecting that submission, made the following observations:

“The drugs guidelines are of course helpful in sentencing offences of this sort, but the reality here is that the mischief is bringing the drugs into prison. That is a very significant aggravating feature and whilst we rely upon the guidelines for some assistance, they cannot determine the final prison sentence to be imposed. In the view of this court, this falls way outside the range which [Counsel] has identified to us today. 

The taking into prison of drugs is pernicious. It causes discipline problems within any custodial institution; it endangers the safety of the inmates and staff and adds greatly to the burden of trying to impose discipline. 

In the view of this court, having been given full credit for the plea, which he had entered at the earliest opportunity, the total sentence of 18 months cannot be said either to be wrong in principle or manifestly excessive, reflecting as it does a total sentence for three separate offences of bringing different items into prison on this occasion.”

All of our advocates understand the guidelines and broader sentencing considerations and can be relied upon to obtain the best result for all of our clients.

 

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.

A Bad Day in Court?

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Several newspapers recently pondered why ‘one woman is jailed after stealing just £3,000 but another who took £22,000 walks free.’

The story was sparked by a tale of two defendants who appeared at the same court centre, on the same day, but faced different judges.

The papers concluded that one was unlucky to have been sentenced by a Judge renowned for being tough on sentence.

Most lawyers know this scenario only too well and given that there is a large margin of appreciation when it comes to sentencing, there may be nothing that can be done about it. 

There are a number of scenarios that we can consider when it comes to sentencing.

 

The sentences were, in fact, appropriate in both cases

It must be remembered that cases which look similar at first blush may, in fact, be greatly different, particularly when a defendant’s offending history is taken into account. 

There are lots of relevant factors that must be taken into account before deciding on the most appropriate sentence to pass in any individual case.

 

The lenient sentence

In some cases, a great result at sentence may be short-lived as in some instances the Attorney General can consider referring the sentence to the Court of Appeal if it is thought to have been ‘unduly lenient’.

 

The harsh sentence

If a sentence is either wrong in principle or manifestly excessive, the defendant can apply to appeal that sentence. We will always promptly advice our clients when this scenario arises.

 

Disparity in sentencing

The court of appeal is not interested in what another defendant before a different court may have received. Sentences must be assessed on their merits, so another person’s good result will not translate into a reduction for a person not treated leniently. 

Any disparity in sentencing is, however, a more critical consideration when several defendants are sentenced in the same case. 

Slightly more complex issues arise in this scenario, and we will always carefully assess the situation and advise accordingly.

Ultimately, sentencing guidelines are not tramlines, and absolute fairness in sentencing is not always achieved; but there are nonetheless important protections to ensure that judges do not go beyond a proper exercise of discretion.

 

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.

Sentencing and Delay – Can it work in your favour?

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There have been widespread reports in the press about spare courtroom capacity, with judicial sitting days at an all-time low. These reports correspond to our own experience.

When court delay is combined with significant delays in investigating and charging defendants to court, this can mean a very long period between the commission of any crime and sentencing. 

As advocates, we are increasingly concerned with the effect of delay on the people we represent and can deploy several legal principles in an attempt to mitigate the sentence passed. 

On occasion, this can work in our client’s favour, either reducing the length of the overall sentence, allowing a custodial sentence to be suspended where it would not otherwise be, or by justifying a non-custodial sentence in circumstances where custody would be the norm.

 

What does the law say?

In Prenga [2017] EWCA Crim 2149 the court held:

“We start by considering the nature and extent of the discretion to adjust otherwise lawful sentences where required to achieve justice. It is, in this regard, well established that a sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. The paradigm illustration flows out of the requirement in ECHR art.6 that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one.”

In Dyer v Watson; K v HM Advocate[2004] 1 A.C. 379; [2002] 3 W.L.R. 1488 Lord Bingham of Cornhill observed that in any case in which it was contended that art.6 was violated by virtue of delay the first step was to consider the period of time which had, in fact, elapsed. 

Unless that period gave grounds for real concern it was almost certainly unnecessary to go further “… since the convention is directed not to departures from the ideal but to infringements of basic human rights”. 

The threshold for proving a breach of the reasonable time requirement was a high one “not easily crossed”

In Mills (Kenneth Anthony) v HM Advocate (No.2) [2004] 1 A.C. 441 Lord Hope (at [54]) recognised that delay could in an appropriate case justify an adjustment to sentence. One possible rationale for this is the anxiety experienced by a defendant, resulting from the abnormal prolongation of proceedings. Another possible explanation might be that a defendant’s life has changed during the period of delay such that the person who stands to be sentenced is, in terms of character, not the person who committed the offence.

In Attorney Generals Reference No.79 of 2009 [2010] EWCA Crim 338 it was held (per Hughes LJ VP at [19]) that delay:

“… is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly a conviction occurs”.”

The judge, nonetheless, emphasised that applications for reductions in sentence would be “unusual”. The authorities relating to delay and art.6 demonstrate that unnecessary delay can amount to mitigation resulting in reduction of sentence but, also, that questions of delay are instances of “… the broader question of what a just sentence is”. It follows delay, whilst perhaps being a paradigm example, is not exhaustive of the categories of case in which a sentence might be mitigated in order to ensure overall justice.

In R. v Kerrigan (David Joseph) [2014] EWCA Crim 2348, the Court of Appeal was required to consider broad questions of justice in the context of custodial sentences ordered to be run consecutively to existing sentences. 

In para [40] of the judgment the court set out seven principles which might apply where a court was imposing sentences for different offences and where they might apply concurrently or consecutively leading to potentially arbitrary results. 

For present purposes the seventh principle is relevant and was formulated in the following way:

“a judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly”.

In all cases we will ensure that the impact of any delay on your case is fully explored in order that this can be reflected during sentencing.

 

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.

Ten years for a double killing – look behind the headlines

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In a truly tragic case, Samantha Ford drowned her 23-month-old twins in the bath. 

Appearing at the Old Bailey for sentence, the Judge, Mr Justice Edis, handed down a 10-year sentence, causing widespread outrage. Longer sentences are routinely handed down for drug dealing and other crimes.

To understand more about this case, we need to look beyond the headlines and examine the facts more carefully.

The killing was carried out to avenge her husband calling time on their marriage. Ford was suffering from a significant psychiatric illness which the defence team explored in detail. The medical evidence ultimately led to a plea being accepted to manslaughter due to diminished responsibility.

A conviction for murder will attract a life-sentence but sentencing for manslaughter will typically attract lower sentences.

There is also a massive clue in the defence deployed in this case, ‘diminished responsibility’. 

It is clear that in large part, this crime was due to Ford’s unbalanced mind at the time of the killing.

While the Judge did pass a 10-year custodial sentence, that is not the full picture when it comes to sentencing in this case. The complete sentence passed is referred to as a Hybrid-Order. 

Hybrid-Orders comprise mental health treatment, followed by a custodial term to reflect some degree of liability.

Ford was sentenced to a hospital order with a limitation direction, which means that she will be detained in a secure medical facility until such time it is safe to release her from that part of the sentence. 

It could be a great many years before this happens.

When Ford is released from medical care, she will then have to serve the unexpired part, if any, of the 10-year sentence (with release half-way through as for any other prisoner) and remain on licence in the usual way.

Cases such as this one illustrate the fragility of the human mind. What drives an otherwise loving mother to kill her two young children is beyond the comprehension of most people. 

Samantha Ford is not a danger to the broader public; she was and is a very poorly lady who will be haunted for the rest of her life with the tragic events that unfolded. First and foremost, she requires and will receive urgent medical help.

As specialists in criminal law, we are trained to recognise medical defences and ensure that the full picture is presented to the court.

 

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.

Brexit, firearms and other laws

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As the government prepares to bring us out of the EU on 31st October 2019, details have begun to emerge as to the legal and regulatory position if we leave without a deal.

Some of the first information released relates to firearms, although it regrettably raises more questions than it answers.

Given the importance of complying to the letter with firearms laws both here and abroad, those affected must take steps to keep up to date, and this may involve quite close monitoring over the next few weeks. The same is true in relation to other areas of regulatory and criminal law compliance.

What is the current situation?

A UK resident who wants to travel to the EU with their shotgun or a firearm can apply for a European Firearms Pass. This is a licence, or passport, that allows travel between member states, you must also have a licence from the UK to hold the firearm. Depending on the country you are travelling to, there may be other documents required. All weapons have to be declared to customs and also to the travel company you are using for transport.

What will change?

If the UK leaves the EU without a deal, you will no longer be able to apply for a European Firearms Pass.

What will happen instead?

You will need to check the firearms licensing requirements of the country, before travelling. 

This will also apply if you are in an EU country with the firearm with a European Firearms Pass at the time the UK leaves the EU.

What about visitors to the UK?

If you are sponsoring a visitor from the EU, who wants to bring a firearm to the UK, you need to apply to the local UK police force for a visitor’s permit. A permit that is issued before the UK leaves the EU remains valid until it has expired.

Once the UK leaves the EU, the European Firearms Pass will no longer be recognised for EU visitors to the UK. Sponsors of visitors will not need to show a valid Pass.

What should I do?

It is not yet known whether the UK will leave the EU without a deal in October. If you intend to travel with your firearm, it is advisable to check the licensing requirements of the country that you are visiting as countries have varying lead times for applying for licences. Without a proper licence, you may not be allowed to travel with your firearm.

If you are concerned with any aspect of regulatory criminal law and Brexit then get in touch for advice on the latest position.

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.