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.

Drink or Drug Driving – The Second Sample

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

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

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

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

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

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

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

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

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

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

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

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

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

 

How we can assist

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

Firearms – Sentencing Reform

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

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

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

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

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

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

The Council, therefore, felt that:

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

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

 

Which offences will the new guideline cover?

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

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

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

 

How we can assist

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

Diplomatic Immunity

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

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

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

 

What is Diplomatic Immunity?

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

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

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

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

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

 

Why Is It Offered?

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

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

 

Can Immunity be Waived?

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

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

 

How we can assist

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