Alexa – Witness for the Prosecution?

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On 29th January 2017, Christine Sullivan and her housemate were found murdered in Farmington, New Hampshire. Their bodies were discovered by the house owner, Dean Smoronk, who was Sullivan’s boyfriend.

Timothy Verrill, an associate of Smornok, was later charged with second-degree murder and has pleaded not guilty.

Although the evidence against Verrill is said to be substantial, the police are trying to obtain further information and potentially a recording of what took place at the house.

 

How?

In the kitchen, where it is believed Christine Sullivan was attacked, there was an Amazon Echo. The police believe the Echo recorded the attack and subsequent events.

Alexa is the artificial intelligence behind the Echo. In order to be able to respond to questions, the Echo needs to continually assess what is said within its range.

Amazon designates “wake-up” words and when one is detected the device records what is picked up, including a brief period beforehand.  The recordings are then saved until they are manually repeated.

Strafford County Superior Court granted the State’s application for a search warrant in this case. Amazon.com has been directed to produce “…forthwith to the Court any recordings made by an Echo smart speaker with voice command capability” for the relevant two-day period. As well as the Echo recording Amazon is to provide “any information identifying cellular devices that were paired to that smart speaker during that time period”.

 

How could this impact the UK?

In Germany, prosecutors used a Health App to track activity at critical times. Many court cases here have used mobile phone tracking or “cell site analysis” to pinpoint the location of an offender at a particular time, CCTV has also become a crucial tool for prosecutors.

There many other voice-activated assistants from companies such as Apple, Microsoft and Google. Most of these devices share recordings with a central-server based artificial intelligence to analyse commands. The number of households with such devices will be increasing every day, and how many of us realise just what is being recorded?

Although we are not aware of any cases in this country involving these types of recordings, it is probably not long before the situation arises and a Court finds itself adjudicating on the release of information. In principle there is no reason to believe that the evidence, if obtained, will not be admitted.

 

How can we help?

We will always assess the strength of any evidence against you, and, more importantly, we will consider the admissibility or otherwise of any evidence. If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Can I get a suspended prison sentence?

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A suspended sentence is a term of imprisonment that is suspended so that you do not go into custody immediately and will not go into custody if you comply with the conditions attached.

 

Who can get a suspended sentence?

In the Magistrates’ Court, any sentence of 6 months’ imprisonment (12 months for two or more either-way offences) or less can be suspended and in the Crown Court, any sentence of 24 months or less can be suspended.

The minimum length of imprisonment for a suspended sentence is 14 days.

It follows, therefore, that if your offending warrants a sentence above the maximum level, or you are sentenced as a dangerous offender, you will not receive a suspended sentence.

This sentence is also not available for youths.  

 

When can a sentence be suspended?

The sentencing court will first consider whether or not a custodial sentence should be imposed, in legal terms whether the “custody threshold” has been passed.

If custody of one of the lengths discussed above is imposed, the Court can then move on to decide whether it can be suspended or not.

In considering whether the sentence can be suspended the Court will look at the particular circumstances of the offence and offender and consider a sentencing guideline that applies to this scenario.

Factors to consider would be whether there is a realistic prospect of rehabilitation, strong personal mitigation and the impact of immediate custody on others.

Mitigating against a suspension would be that the offender is a risk or danger to the public, the most appropriate punishment is immediate custody and a poor history of compliance with court orders.

 

How long can it be suspended for?

From six months up to two years (the ‘operational period’).

 

What conditions may be imposed?

A sentence is suspended on condition that you do not commit any further offences during the operational period. A straightforward order will only have this condition.

Additionally, you can have a suspended sentence order that is subject to further requirements similar to this in a community order. This can include unpaid work, a curfew and supervision with the Probation Service. If you are subject to such an order, it is also suspended on condition that you comply with the requirements imposed.

 

What happens if I breach the order?

You can breach an order by either committing an offence within the operational period or failing to comply with any requirements if imposed.

The starting point for breach of an order is to activate the period of imprisonment. The length of imprisonment may be reduced to reflect the level of compliance with the order and any requirements. If it is unjust in the circumstances to activate the sentence you may be fined for the breach, made subject to further or more onerous requirements, or the operational period may be extended.

 

How can we help?

We can provide advice on possible sentence, representation for any offence from the police station through to sentence and for any breach proceedings.

If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Offences Related to State Benefits

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There are two main offences that are prosecuted in relation to benefit fraud, one involves dishonesty, the other does not.

 

The dishonesty offence

It is an offence to dishonestly make a representation in order to obtain benefit, and this includes a dishonest failure to promptly notify a change in circumstances as well as making a claim that is dishonest from the outset.

 

The offence absent dishonesty

It is an offence to knowingly make a false statement to obtain benefit, again this can be in an initial claim for benefits or failing to give prompt notification of a change in circumstances.

 

What does this actually mean?

The following definitions are given:

Dishonesty – has its normal meaning in criminal offences, although the lesser offence does not require dishonesty it does require proof of knowingly failing to notify. The test for dishonesty was recently revisited by the Supreme Court and the result may well be that it is now easier to prosecute for a dishonesty related offence.

Change in circumstances – there must be proof that the offender knew there was a change of circumstances and that the change would have affected a change in benefit.

Changes in circumstance could include starting to live with a partner, gaining employment or a change in finances.

Promptly notify- prompt is to be given its natural meaning and is a matter of fact. It is for the prosecution to prove that it was not prompt. It is therefore essential to explore all of the surrounding circumstances as this may provide a defence, not only mitigation.

 

Are there other offences?

There are other offences of fraud and false accounting related to benefits that are not covered in this article.

 

What is the likely sentence?

The non-dishonesty offence an only be dealt with in the Magistrates’ Court and carries a maximum term of imprisonment of 3 months.

The offence involving dishonesty can be dealt with at the Magistrates’ Court or the Crown Court and carries a maximum of seven years imprisonment.

The main factors for consideration in sentencing will be the length of time of the overpayment, the value of benefits overpaid, and whether or not the claim was dishonest from the outset.

A claim that is of high value, over a sustained period and which was dishonest from the beginning is more likely to attract a term of imprisonment.

 

How can we help?

Prosecutions for benefit offences frequently generate vast quantities of paperwork. We have a great deal of experience in considering such evidence, and our involvement may mean a lesser value is given to the overpayment which can have a direct impact on the potential sentence.

We can also assess any possible defences that may be available to you. Expert advice is crucial if you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Acid Attacks – New Laws in Force

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After a recent spate of assaults involving the use of acids and other corrosive substances, the government has acted to try and curb their use. At the present time around 15 offences per week involve the use of acid and other like substances.

In January 2018, the Home Office announced a voluntary agreement with a number of major retailers in which they made commitments about the responsible sales of corrosive substances including not selling products containing the most harmful substances to under 18s. The agreement was developed with the British Retail Consortium and also tested with thecAssociation of Convenience Stores and the British Independent Retailers Association to ensure that the commitments were proportionate and worked in the retail environment.

The major retailers who have signed up to the commitments are: Wickes, Screwfix, B&Q, Wilko, Waitrose, John Lewis, Tesco, the Co-op, Morrisons, Aldi UK, Lakeland, Asda and Homebase.

 

Recent developments

On 1st November 2018 new legislation came in to force to strengthen further the controls against possessing corrosive substances.

There are controls in the Poisons Act 1972 on corrosive substances that can be used as poisons or as explosives precursors.

Although this legislation is not designed to limit access to corrosive substances used to assault people, its impact is to restrict access to some of the most harmful substances of concern.

Parliament has enacted a statutory instrument which makes sulphuric acid a regulated explosives precursor above a concentration level of 15%.

The effect of this will mean that members of the public will require a licence from the Home Office to be able to import, acquire, possess or use sulphuric acid.

 

What is the penalty for breaching this law?

If found guilty, the offence carries a maximum sentence of 2 years’ imprisonment.

 

How can we help?

The law is complicated and the potential consequences severe, for expert advice, please contact us on 0113 247 1477 or email us at [email protected].

Grievous bodily harm/wounding

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In legal shorthand we often refer to section 18 or 20 offences, these refer to specific offences under the Offences Against the Person Act 1861.

 

What is the difference between section 18 and section 20?

The most serious form of assault (short of attempt murder) is grievous bodily harm (GBH) or wounding (section 18).

The offence committed with intent carries life imprisonment, the same offence committed without intent (section 18) has a maximum sentence of 5 years.

The offence can be committed by maliciously wounding with or without intent to cause GBH or causing GBH with or without intent.

For an offence to be committed unlawfully and maliciously, it means that there is no defence such as self-defence, force used for preventing crime, defence of property or another.

There are also some other technical differences between the two offences.

 

What is GBH?

GBH or grievous bodily harm is really serious bodily harm so would include broken limbs for example, and it can also include psychiatric injury.

 

What is wounding?

Wounding is where the skin is broken (either internally or externally).

 

Section 18, the intent offence

For the more serious offence intent to cause serious injury or wounding is required.

A jury needs to be satisfied that the offender intended to cause the harm by considering all of the relevant circumstances, including what the offender did and what he said about it.

 

What about weapons?

The use of a weapon will make any offence more serious. Weapons include knives, bottles, throwing acid. Feet used to kick are also considered to be a weapon, and biting would also be an aggravating feature.

 

Section 20, the offence without intent

The offence is the same but that you did not intend to cause the injury. An example would be if you punch someone once and they fall causing a serious injury or wound.

It is easy to believe that you did not intend to cause such a serious injury. Your lack of intent may be taken from the way in which the assault was committed or your behaviour at the time and afterward.

 

What sentence will I get?

For an offence with intent it is almost inevitable that a term of imprisonment will be imposed. The guidelines range from 3 years for a less serious offence through to 16 years for the more serious offences.

Examples of sentences imposed are nine years when a bottle was used to strike the face requiring thirty stitches; nine years also imposed for causing a fractured arm with a baseball bat, knocking down and driving over a police officer, kicks to the head on the floor causing extensive facial fractures.

For offences under section 20 the maximum sentence is 5 years, so a non-custodial sentence is more likely. The guidelines range from a community order to 4 years imprisonment.

 

How can we help?

The difference in sentencing for the absence of intent means that this issue has to be considered carefully in the context of all of the evidence.

We can advise you whether intent and other offence elements can be proven, and the prospects, if appropriate, of a plea to the lesser offence being acceptable to the prosecution and the court.

The law is complicated and the potential consequences severe, for expert advice, please contact us on 0113 247 1477 or email us at [email protected].

Forced Marriage

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Coercing someone into marrying another for some financial or societal benefit is illegal.

In April of this year, three young women in Sheffield became subject to Forced Marriage Protection Orders. This case highlights the how embedded this type of offending is in some parts of England and Wales, particularly concerning young girls.   

Various offences fall under the banner of forced marriage, and it is essential to be aware of their constituent parts if you are concerned about this issue.    

While family law courts make orders of the kind mentioned above, breaching them engages the criminal law.  

 

What is the offence?               

A serious offence is using coercion or deception for the purpose of marriage, under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014.

This offence occurs if someone”

“uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.”

 

What are the penalties?    

The offence is triable either-way (so before a magistrates’ court or a crown court) but warrants significant sentences following a conviction on indictment, seven years’ imprisonment (and/or a fine) being the maximum penalty.  

Similarly, the related offence of breaching a forced marriage protection order can lead to a sentence of up to five years’ imprisonment. Prior to the 2010 legislation the only punishment for doing this was contempt of court. That is still an option under the new regime, alongside this new penalty.  

 

Forced marriage and mental health      

These offences inevitably lead to interactions between the law and people’s religious and cultural views.

Another aspect is protecting those who are incapable of consenting to marriage because of mental incapacity.    

All these factors were considered in the case of Luton BC v B [2015] EWGC 3534 (Fam). In that case, a person was deemed to lack capacity to consent to either marriage or sexual relations, in relation to the latter specifically because “the combination of autism and intellectual disability prevents [the person] from making the crucial link between actions and consequences”.  

 

How we can help

If you are alleged to have been involved in these or any other offences, or have further questions about this area of law, then please contact us on 0113 247 1477 or email us at [email protected]. We have specialists available who fully understand these particularly complex laws.

What is harassment?

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There are two distinct criminal offences, one of harassment putting people in fear of violence and one without. Stalking is a similar but separate offence and is not covered in this article.

 

What does it involve?

There has to be a course of conduct involving as little as two incidents against another person or persons.

The dictionary definition is to “torment by subjecting to constant interference or intimidation”.

The law does not provide a comprehensive definition and there are many actions that can foreseeably alarm or cause a person distress that would not constitute harassment.

The offence is aimed at conduct that alarms or causes a person distress and which is oppressive and unreasonable.

 

What do the prosecution have to prove?

  •    That there is a course of conduct;
  •    which amounts to harassment of another; and
  •    which the defendant knows, or ought to know amounts to harassment of another.

Additionally, for the more serious offence the prosecution has to prove:

  •    that the course of conduct causes another to fear that violence will be used against him; and
  •    that the defendant knows or ought to know that his course of conduct will cause another to fear that violence would be used against him

 

How do I know it is harassment?

The test of whether you ought to know whether the course of conduct amounts to harassment is whether a reasonable person, in possession of the same information, would think the conduct amounted to harassment. The same test applies in respect of fear of violence.

 

Are there any time limits?

At least one of the incidents has to have occurred within six months of the charge, for the basic offence without violence.

 

What about defences?

There are three available defences for the basic offence:

  •    that the course of conduct was for the purpose of preventing or detecting crime;
  •    that it was conducted under a rule of law;
  •    that it was reasonable in the circumstances.

Additionally, it is a defence for the more serious offence if the course of conduct was reasonable for the protection of the defendant or another or for the protection of their or another’s property.

 

What sentence could I get?

For the offence without violence (the basic offence) up to six months imprisonment can be imposed (2 years if racially aggravated).

For the more serious offence involving fear of violence the maximum sentence was 5 years and is 10 years for offences committed on or after 3rd April 2017 (7 or 14 years if racially aggravated, again dependent on date of offence).

A restraining order can also be imposed, the aim of which is to protect the victim of the offence from further incidents, contact or risk of violence. Such an order can prevent contact with the victim and provide for an exclusion zone around their address. A restraining order can be imposed even if you are acquitted of the offence.

The law in respect of harassment and the potential defences is complicated, and there are other specific offences of harassment (for example of debtors) that are not covered in this article.

 

How we can assist

If you are being investigated for or have been charged with this offence please contact our office for further advice and representation, our solicitors are experts in criminal law and can guide you through the complexities. Please contact us on 0113 247 1477 or email us at [email protected].

Inadmissible confessions

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The 2015 documentary series Making a Murderer follows the story of two men from Wisconsin who were convicted of sexually assaulting and murdering a woman.

One of the convicted was an impressionable teenager called Brendan Dassey. Dassey’s conviction was overturned in 2016 (confirmed on appeal in 2017) on the basis that his ‘confession’ to the murder was coerced by police officers who exploited his vulnerable nature.

 

What is the law in England and Wales?

Provisions in the Police and Criminal Evidence Act 1984 allow courts to reject confessions of this kind on the basis that they were obtained ‘oppressively’ or are unreliable. The relevant statutory provisions are ss. 76(2)(a) and (b) and 77 of the Act.

 

What does “oppressive” mean?

The term ‘oppressive’ has caused problems for the courts. It seems to be agreed that oppression implies some “impropriety” which compromises the confession’s veracity: Fulling [1987] QB 426.

Uncertainty exists, however, as the same sort of behaviour in different cases has led to the confession being excluded in one but not the other: Paris (1993) 97 Cr App R 99; L [1994] Crim LR 839.

 

What about unreliability?

Aside from oppression, confessions may be excluded on the basis of unreliability. This unreliability may come about via “anything said or done” or something problematic concerning the circumstances in which the ‘confession’ was made.

An important point to note is that the suspect’s own conduct cannot undermine a confession: Goldenberg (1988) 88 Cr App R 285.

Another important reason to exclude a confession on the basis of unreliability is where the suspect is mentally unfit. There is a separate section of the 1984 Act dealing with this: section 77. In particular, this seeks to protect suspects who may be suggestible and may simply go along with police officers’ leading questions about an alleged offence.

 

Deciding on the admissibility of confessions

The actual process for deciding whether a confession can be admitted is a ‘voir dire’. That is essentially a mini-trial within or alongside the main trial. Section 76(2) of PACE gives guidance on this point.

The prosecution must prove to the criminal law standard that the confession was not obtained in the way alleged by the defence, otherwise it will be excluded. And, although there is some disagreement, the standard position appears to be that the defendant’s evidence at the voir dire cannot be admitted during any trial for the substantive offence: Wong Kam-ming [1980] AC 247.

 

How we can help

If you are concerned about the conduct of police officers and/or the reliability of a confession made while in custody, please contact us on 0113 247 1477 or email us at [email protected].

Focus on ‘Dangerous Dogs’

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The Environment, Food and Rural Affairs Committee’s report ‘Controlling dangerous dogs’ calls for a full-scale review of current dog control legislation and policy to better protect the public. The report was published on 17 October 2018.

 

Is there a problem?

According to the Committee, yes.

In 1991 the Dangerous Dogs Act outlawed certain breeds/types of dog to protect the public from attacks, but since then the number of yearly fatalities has continued to rise.

Hospital admissions for dog attacks have increased by 81% since 2005. An unacceptably high number of victims suffer horrific life-changing injuries in these incidents. Even where no physical injury occurs, dog aggression can cause significant psychological distress.

At the same time, too many harmless dogs are being destroyed every year because they are banned and cannot be re-homed, even if they are well tempered and pose no risk to the public.

The Government has maintained that the breed ban is essential to public safety, arguing that these prohibited dogs pose an inherent risk. This inquiry found insufficient evidence to substantiate this claim.

The Committee agrees with the Government that it would be irresponsible to amend the breed ban immediately without adequate safeguards, but ‘that does not mean that the Government should continue to sit on its hands.’

The report argues that changing the law on Breed Specific Legislation is desirable, achievable, and would better protect the public, and that ‘…the Government’s lack of action on this front shows a disregard for dog welfare.’

 

What action needs to be taken?

The report makes the following recommendations:

  • immediately remove the prohibition on transferring a banned dog if it has been behaviourally assessed by experts and found to be safe. This would prevent the needless destruction of friendly animals that could be safely re-homed;
  • commission an independent evidence review to establish whether the banned breeds/types present an inherently greater risk than any legal breed or cross breed;
  • commission a comprehensive review of existing dog control legislation and policy, with a view to developing an alternative model that focuses on prevention though education, early intervention, and consistently robust sanctions for offenders;
  • ensure all future strategies are developed with a full and transparent commitment to evidence-based policy-making. If the independent evidence review concludes there is insufficient evidence to support the Government’s position on Breed Specific Legislation, this aspect of the law should be revised;
  • introduce mandatory training and education courses for minor dog offences, similar to speed awareness courses for drivers;
  • support wider dog awareness training for schoolchildren, and run a targeted awareness campaign for dog owners and the general public on safe human-dog interaction;
  • increase support for local authorities and police forces to ensure they have the capacity to fulfil their duties; and
  • engage with international partners to learn lessons and best practice from abroad.

 

Will anything change as a result of this report?

It remains to be seen how if at all, the government will respond to this latest report.

Sentencing for dangerous dogs’ offences already results in severe sentences, but the focus here is more on trying to ensure that harm is not caused in the first place.

 

How we can assist?

Dog owners are often unfairly stigmatised and face severe punishment if found guilty of dangerous dog offences.

The legislation is extremely complex, but our solicitors have an in-depth knowledge of this area of law.

If you face investigation or prosecution it is important that you seek early advice. Please contact us on 0113 247 1477 or email us at [email protected].

Publishing, or having for publication for gain, an obscene article

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Prosecuting those who publish obscene articles (an offence under section 2 of the Obscene Publications Act 1959) is hardly prudish, despite what certain commentators would argue.

The maximum sentence of five years’ imprisonment will frequently be warranted for activities which have disturbing and harmful knock-on effects.

Laws of this type remind us that free-speech and expression is subject to lawful limitations.

 

Legislation

According to section 1 of the 1959 Act, one must decide whether the effect of the object in question is:

“…such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.”

An important line taken in the case law is that an article must go beyond simply being rude or disgusting; the impact upon those who deal with it is central to the question.

 

Defining the terms

In Calder & Boyars Ltd (1968) 52 Cr App R 706, the court considered that the term ‘obscenity’ could encompass a wide range of misconduct.

It has also been noted that while not everybody must be offended or influenced by the material, far from it actually, the effect must be more than minuscule: DPP v Whyte [1972] AC 849.

Regarding what ‘article’ can encompass, it is virtually anything capable of displaying some kind of information and/or broadcasting audio and video content. That description includes things which are not primarily made for these purposes.

The term ‘publish’ has been interpreted remarkably widely; a single sale made by a developer of obscene photographs or creator of paedophilic writing to one customer can constitute publication: Taylor [1995] 1 Cr App R 131; GS [2012] EWCA Crim 398.

Moreover, the court decided in Sheppard [2010] EWCA Crim 65 that it was “fundamentally misconceived” to argue that ‘publication’ requires a ‘publishee’. It emphasised that this is a separate body of rules from libel law, so applying the same approach is wrong.

 

Experts

While expert evidence is generally inadmissible in terms of what constitutes something obscene, it may be employed where the jury would otherwise not understand the effects of the obscenity upon a particular group: DPP v A & BC Chewing Gum Ltd [1968] 1 QB 159.

 

How we can help

If you have further questions about this offence or require advice and/or representation in relation to allegations of this kind, please contact us on 0113 247 1477 or email us at [email protected].