Soubry and the Nazi Slur – An Offence?

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Was it an offence to accuse Anna Soubry of being a Nazi whilst she was broadcasting on Sky News?

Potentially, is the answer.

The Public Order Act 1986 contains the most likely candidates for any prosecution, in sections 4, 4A, and 5.

These sections deal with ‘lower level’ public order offences.

 

What are those provisions?

Section 4 is also known as ‘threatening behaviour’, and sections 4A and 5 are both types of ‘disorderly behaviour.’ Section 4 is the most serious, with section 5 the least serious.

The actions of the protestors during the interview, and then later on the street, might be one of these offences.

 

Which offence is it?

It will be for the Crown Prosecution Service to decide which to charge, and the Court to determine whether the people are guilty. The two behaviours could be charged together, individually, or not at all.

It needs to be remembered that the prosecution will be considering not only the fact that Miss Soubry may have been affected by the behaviour, but also other members of the public around the parliamentary estate.

 

What about the shouting?

That seems like it might fall under either section 4A, or section 5.

Section 4A says that a person is guilty of an offence if he uses threatening, abusive, or insulting words or behaviour and causes harassment, alarm or distress.

He also has to intend to cause a person harassment, alarm or distress.

Section 5 says that a person is guilty of an offence if he uses threatening or abusive words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress.

The critical difference is the intention of the person shouting the words.

Section 5 also doesn’t require any harassment, alarm or distress to actually be caused, just to be likely to be caused.

 

And the behaviour on the street?

That could fall under either of the above, or it might be the more serious section 4.

Section 4 says that a person is guilty of an offence if he uses threatening, abusive or insulting words or behaviour towards another person.

He must also have the intention to cause that person to believe unlawful violence will be used against them, or to do it in a situation where that person is likely to think that violence will be used against them regardless of intention.

 

Did the protestors definitely commit an offence?

No. The police will continue to investigate and gather evidence. They may conclude there is not enough evidence to ask the CPS to charge the protestors, and the CPS may decide that there is not enough evidence if they are asked.

The protestors may be charged and acquitted.

There are also free speech considerations. Article 10 allows for freedom of expression and shouting that Anna Soubry is a Nazi may be protected by that.

Article 10 does allow for free speech to be curbed for the prevention of disorder or crime.

 

What if I shouted at Anna Soubry?

Each public order offence is different, and each case is too. This is a general overview of the law.

Over the last few days we have seen definitive opinions on this subject, on both sides of the line.

In our view this rush to judgement is somewhat premature, all public order offences need to be seen in context with the full facts carefully investigated.

If you need specialist advice, contact us on 0113 247 1477 or email us at [email protected] and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.  

Parental Dilemmas That Could Land You in Prison

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It is a nightmare scenario that potentially any parent could face. A child returns home, late at night in an agitated state.

He hurriedly tells you that he has been in a fight, it wasn’t his fault, but someone has been hurt, badly. Further details are not forthcoming, but he thinks the police will be coming to arrest him. Thinking fast, and in order to protect, you take his clothes and put them in the wash.

Before you can even think of assembling an alibi for him, the police have kicked down the door and found your son cowering in his bedroom. He is naked, and there are no clothes in sight.

The experienced officer knows just what to do, rushing through to the kitchen and unplugging the washing machine. It will later be taken away so that the contents, including the water, can be forensically tested.

Unsurprisingly your son is arrested, but what fate awaits you?

Well, how this story ends depends on precisely what the police discover, but it is often proved that a terrified parent has acted to protect their child.

The act of putting those clothes in the washing machine or providing a false alibi amount to attempts to pervert the course of justice.

In other scenarios family or friends might provide some safe harbour for a person fleeing the police. Again, this is a serious criminal offence if done knowingly.

If convicted a prison sentence will inevitably follow, and another life will be shattered.

In some cases, there might be a viable defence, be assured that we will find one if it exists. In other cases, the task is to mitigate, to tell the story from the parental perspective. What do you think you would do in this scenario? Or more to the point what would you do if it became a reality?

We might not like to think so, but any one of us could be caught up in a nightmare like this.

All manner of people can find themselves caught up in the justice system. We don’t see criminals, we see people, with their own unique set of circumstances.

 

How we can help

If you want to be seen as an individual and not a case number, defendant or criminal, contact us on 0113 247 1477 or email us at [email protected] so that we can discuss your options.

A Simple Adjournment?

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In criminal practice and procedure, you might think that the humble adjournment is a relatively simple and straightforward matter, but you would be wrong.

A little like buses, never available when you want one, yet, when you don’t want a case delayed the court always appear happy to work against you.

But in reality, the humble adjournment is now a complex process, and only a mastery of the relevant principles will ensure the best outcome for your case.

The wise advocate is armed with a detailed chronology, ready to deploy without notice on an unsuspecting opponent. All relevant facts will have been gathered and a detailed submission will ensure the best prospects of success.

On occasion, it will be down to a client to assist. If for example, you cannot attend court due to illness or another unexpected matter arising, your solicitors will ensure that you are aware of the detailed information that needs to be provided.

The case law in relation to adjournments is well known, or at least ought to be. In Crown Prosecution Service v Picton, the High Court detailed the factors that a court ought to focus on:

(a) A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.

(b) Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.

(c) Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.

(d) Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.

(e) In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.

(f) The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise, if the party opposing the adjournment has been at fault, that will favour an adjournment.

(g) The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why.

(h) Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court’s duty is to do justice between the parties in the circumstances as they have arisen.

 

What could possibly go wrong?

In a case published last week (Pari-Jones v Crown Prosecution Service) the following facts emerged:

‘On the morning of the trial, the legal advisor to the Magistrates’ Court received two emails from the defence solicitor, which were written in Welsh and were translated and presented to the court. The first email was sent at 9.23am. The solicitor stated that he was acting for the defendant and that she was a lady approaching 80 years old. It was the first listing for trial, and the criminal damage related to a neighbour dispute. The magistrates were told that the defendant was very concerned regarding the weather, because it was freezing around her house and the road, and she had no electricity. She was living by herself with no close family. The solicitor further wrote that he was stuck in his home, which was in Pwllheli, and that it was freezing hard. He said he was a distance away from the main road, which had been gritted, and although he could leave his house, he was not feeling comfortable in venturing out.’

Almost unbelievably the court refused the defence adjournment and the defendant was convicted in her absence. The magistrates’ admitted to having considered no case law at all!

So, the simple adjournment, in the wrong hands can go terribly wrong. That is why we train all of our advocates to never take an application for granted and ensure the best advocacy is always deployed on your behalf.

 

How we can assist

We have a team of highly trained and dedicated solicitors. Please contact us on 0113 247 1477 or email us at [email protected] to discuss your case.

Will the Court Know About My Previous Convictions?

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If you are being sentenced for an offence, the court will be aware of, and may take into account, any convictions you have. Whether this has any impact upon the sentence passed will very much depend on the date of those convictions and the relevance of any to the more recent offending.

If you plead not guilty, the court or jury can only be made aware of any convictions in certain circumstances. The relevant law is known as the ‘bad character provisions”.

 

What are the circumstances?

Prior to these provisions being introduced the court could be made aware of any bad character by way of similar fact evidence. So, for example, if a burglar had a particular or unusual way of committing offences, an ‘MO’, the detail could be given to the trial court. Whilst there were other ways in which evidence of bad character could be admitted, the general presumption was against evidence of previous convictions being used.

The new provisions expanded on the old law.

A defendant’s previous convictions may be admitted in court in the following circumstances:

  •    all parties agree
  •    a defendant introduces them himself
  •    it is relevant to an important matter in issue between the defendant and the prosecution
  •    it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
  •    it is necessary to correct a false impression given by the defendant
  •    the defendant has made an attack on another person’s character

If you said in evidence when charged with theft, that you would never steal anything, and you had convictions for theft, it would mean the court is likely to be told about them.

If you called the prosecution witness a liar, you might find your convictions before the court.

As with the old law, any convictions based on your ‘MO’ could also be introduced. So, if you have previous convictions for burglary and are now charged with burglary, the prosecution may apply to admit this evidence.

 

Does this only apply to defendants?

You can also make an application for the bad character of a non-defendant or witness to be out before the court in certain circumstances.

 

How can we help?

The law in respect of the bad character provisions is extremely complicated, there is extensive case law on the subject and this article is a very brief overview. Some practitioners are of the view that there is little that can be done to avoid bad character evidence being admitted – this is not something that we agree with, no concession should be made unless and until a detailed analysis of the circumstances has been carried out.

We can oppose any application on your behalf or make an application for a non-defendant’s character to be introduced.

We have the knowledge and experience to make these arguments on your behalf and guide you through the process.

The introduction, or otherwise, of any convictions may play a crucial part in the outcome of any trial. If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

It’s a Genuine Fake!

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Unauthorised use of a registered trademark is a criminal offence, so selling fake goods at a car boot sale or on internet selling sites can get you into serious trouble.

Few people appreciate the offences that can be committed, and ignorance is usually no defence. This article seeks to explain the background to some offences in respect of trademarks.

 

What is a trademark?

A trademark is a badge of origin, any sign capable of being represented graphically, which is capable of distinguishing goods; they may consist of words, personal names, designs, letters, numerals or the shape of goods.

 

What are the offences?

The offence is to apply the mark (that is the copied trademark), sell goods with it on, or have goods in your possession in the course of a business.

There are also offences covering the copying of a symbol or sign on labelling, packaging or advertising. The law covers all goods from baseball caps and handbags to wheel trims and counterfeit drugs.

 

Is there any defence?

It is a defence to show that you believed, on reasonable grounds, that the use of the sign was not an infringement of the registered trademark.

You need to demonstrate that not only did you honestly believe that the sign did not infringe registered trademarks but that you also had reasonable grounds to believe that.

If you believed that the goods were genuine, that is also a defence.

For the offence to be committed the trademark has to be one that is registered and also one that has a reputation in the UK.

If the fake is terrible quality that is no excuse, the fact that no one would believe it was genuine does not matter as the use of the trademark is still an offence.

 

What can happen to me?

The offences are serious, possession of a few items can lead to a community order while a central role in a large operation can mean a sentence of up to ten years imprisonment.

A conviction for this type of offence can also lead to confiscation proceedings being brought against you. These proceedings involve an assessment of the benefit or profit made from the offence, and if there has been a benefit, you can be ordered to pay that back from your assets. Even if you did not have any assets an order can be re-visited in the future should you come into any money.

 

How can we help?

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

Psychoactive Substances

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New legislation was introduced in 2016 banning the production, sale, distribution and supply of psychoactive substances. Within that legislation was a requirement for the government to review the law to measure any changes in outcomes before and after the law was introduced, to see if its aims were being achieved. That review has just taken place.

 

What challenges have there been to the law?

There have been three main challenges, concerning the medicinal products exemption for nitrous oxide, the psychoactivity of nitrous oxide and the psychoactivity of synthetic cannabinoids.

 

What was decided?

In each case, the Court held that the substances were subject to the provisions of the Act.

 

What enforcement has been taken?

There have been around 270 prosecutions under the Act, with about 170 sentences being imposed and 332 retailers have been identified as ceasing sale of psychoactive substances.

Police forces have recorded 1,481 arrests and seizures up to March 2017, so it is clear that the supply of the substances has not been eliminated.

 

Has the new law had any effect?

The main aim of the Act was to prevent the open sale of psychoactive substances, and this has largely been achieved. There has been a fall in the use of the substances and therefore a reduction in health-related harm.

There has been an increase in the supply by street dealers, an increased use in some prison populations and amongst the homeless and there is a continued development of new substances in an aim to avoid the legislation.

 

What are the penalties?

The maximum penalty for producing, supplying, possessing with intent to supply or importing psychoactive substance is seven years. The maximum penalty for possession of a psychoactive substance in a custodial setting is two years.

The Act also introduced a scale of civil sanctions: prohibition notices, premises notices, prohibition orders and premises orders, with breach of the two orders being a criminal offence.

 

How can we help?

Various substances are banned under the Psychoactive Substances Act 2016; some are now controlled under the Misuse of Drugs Act 1971.

Stronger penalties are available under the Misuse of Drugs Act, so it is essential to ensure that the correct legislation is being applied. We are experts in this area and can provide you with tailored advice. If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Drink Driving – The Reality

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Many people have an image of a typical drink driver: overweight man, staggering from the pub after an all-day session and getting into his car. A few minutes later that car being pulled over by police officers due to erratic driving.

That is sometimes the story, but not the most common one that we see. It is more likely to be similar to Sue’s story.

Sue leaves the party, sensibly gets into a taxi and later catches a few hours sleep before the next workday begins.

She feels a little tired but otherwise perfectly fine. Sue embarks on a leisurely drive along a familiar route until out of nowhere a car appears. Her journey is broken by the sound of scraping bumpers and an angry motorist demanding insurance details. A miserable start to her day!

On the plus side, nobody is hurt, it’s a simple insurance job.

That is until the traffic chaos catches the attention of a passing patrol car.

 

Sue’s nightmare is about to begin

Ten minutes later Sue is in handcuffs on her way to a police station. Eight hours later she is charged with drink driving. Two days later she has been banned from driving for 18 months and shamed in the local paper.

A vast number of people find themselves before the court as a result of the ‘morning after’ effects of alcohol consumption. Whilst we can make assumptions about the average time it might take for alcohol to leave our system, these are rarely accurate in real life. The drink drive limit is quite low, so there is little margin for error. Even quite moderate alcohol consumption in the evening can leave you over the legal limit the morning after.

Otherwise sensible, law-abiding and hardworking people find themselves before a court facing not only a loss of licence but sometimes a loss of employment as well.

 

How we can help

We would sooner not see you at all, but if you do face court proceedings, do not confront them alone. We all make mistakes.

Contact us on 0113 247 1477 or email us at [email protected] to discuss any aspect of your case.

Computer hacking

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Hacking has been in the news a great deal in the last couple of years, for example, the 2016 US Presidential Elections, the extradition case of Lauri Love and the hacking of user accounts of various large companies in order to steal personal information. At the other end of the spectrum we see cases of police officers unlawfully accessing police computers (often charged as misconduct in public office).

 

What is hacking?

Put simply hacking is unauthorised access. The law (Computer Misuse Act 1990) says that hacking is:

–    causing a computer to perform any function with intent to secure access to any program or data held in any computer when;

–    that access is unauthorised; and

–    the person knows at the time when he causes the computer to function that that is the case.

 

Why would someone hack a computer?

Some people like to test their abilities, to see if they can get through high-security measures. Others may want access to be able to commit further criminal offences, the information obtained could be used for fraud, blackmail or other similar offences.

It is not necessary for a person to intend to use any of the information gained. The simple offence is the intent to gain access to information or data to which you would not usually have access, although see below for other offences.

 

Are there other offences?

As well as the simple offence set out above (unauthorised access), there are further offences of unauthorised access with intent to commit or facilitate further offences; unauthorised acts with intent to impair the operation of the computer; and unauthorised acts causing or risking serious damage.

 

What are the penalties?

These offences can be dealt with at the Magistrates Court or the Crown Court depending on the seriousness. The maximum penalty at the Crown Court is two years imprisonment and/or a fine for the simple offence of unauthorised access.

Where the offence is committed with intent to commit further offences, the maximum sentence becomes five years, and if committed with intent to impair operation the maximum sentence is ten years.

By way of examples, a man who gained access to websites and deleted data to cause inconvenience as revenge for his dismissal was given nine months’ imprisonment.

A man accessed the Welsh Assembly computer system on twenty occasions over a period of a week, reading a number of restricted, sensitive emails, was given four months’ imprisonment.  In another case 2 years imprisonment was imposed for introducing a number of viruses to the internet, causing unknown damage.

In many cases the sentences are much more severe.

How can we help?

It is important that if you are under suspicion of committing an offence that you speak to a specialist before talking to the police. We can help 24 hours a day, please contact us on 0113 247 1477 or email us at [email protected] to discuss any aspect of your case.

Happy Birthday to the Human Rights Act

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The Human Rights Act is 20 years old this year. Its name is often used in vain, “it’s against my human rights!” or blamed for something that probably isn’t to do with the Act at all. The Act sets out the fundamental rights and freedoms to which everyone in the UK is entitled.

 

Where did the law come from?

The legislation was passed in 1998 to incorporate into UK law the European Convention on Human Rights. Before that, you may have had to go to the European Court of Human Rights in Strasbourg rather than a British court if you thought your human rights had been breached.

 

What rights are protected?

A wide range of rights are protected, these include:

  •    Right to life
  •    Freedom from torture
  •    Freedom from slavery
  •    Right to liberty and security
  •    Right to a fair trial, no punishment without law
  •    Respect for private and family life
  •    Freedom of thought, belief and religion
  •    Freedom of expression
  •    Freedom of assembly and association
  •    Right to marry and start a family
  •    Protection from discrimination

 

How is this relevant to criminal law?

The Act can have extensive application to criminal law; many underlying principles are supported by the protected rights. Most important is the right to a fair trial, and that there is no punishment without law.

An accused person is always innocent until proven guilty and has the right to hear the evidence against them.

Whilst some of these rights were of course already an integral part of English criminal law, the European jurisprudence has played an important part in developing this area of law.

Other protected rights can come into play, for example, freedom of speech and of assembly may become relevant in some public order offences. We have seen this utilised very well in a recent case involving protests in relation to fracking.

Protection from discrimination – this is a right protected by offences that become more serious if racially aggravated or persons of a protected characteristic are targeted by an offender. This can have an impact on the offence charged and also in sentencing.

 

How else is the Act used?

The legislation is there to challenge injustices, Hillsborough is probably one of the better-known examples where the Act was used by the families to secure an inquest.

It has been extensively argued in diverse cases such as seeking confirmation over questions on assisting suicide and euthanasia, keeping elderly couples together in nursing homes, and preventing extradition to countries that have the death penalty.

It is also likely to be used in respect of Windrush and Grenfell Tower inquiries.

It may well also be raised in current arguments as to whether the power of stop and search should be expanded as there are real concerns certain communities may be unfairly targeted.

 

How can we help?

Our lawyers are dedicated to securing justice and we achieve this by using a very wide range of laws.

We can advise you of the impact of this law in your particular circumstances, if you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].

Stop and Search

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The power of the police to stop and search is currently in the media due to the rise in murders and serious crimes of violence involving the use of knives, particularly in London. A particular area of concern is the disproportionate use of search powers in relation to some minority groups.

So, what are the relevant powers?

 

Section 1 Police and Criminal Evidence Act 1984

The most commonly used power to search people is under section 1 of PACE. This section allows searches if an officer has reasonable grounds to suspect a person of carrying drugs, weapons, stolen property or an item that can be used to commit crime.

 

Section 60 Criminal Justice and Public Order Act 1994

This power has been used recently by London councils in response to the murders taking place. Section 60 allows the police to search anyone in the specified area without the need for “reasonable grounds” that is required for a search under section 1 above. The vast majority of searches under this power are carried out by the Metropolitan police.

 

Sections 47A Terrorism Act 2000

This section allows the police to conduct searches where there is a reasonable suspicion that an act of terrorism will occur. The power had not been used extensively until the terrorist attacks that started to take place in 2017.

 

What must the officer do under section one?

In order for a search to be lawful, the officer needs to inform you of his name and police station, and he can use reasonable force to carry out the search. You may be detained for the search, near to where you were stopped and only for a short time. You must be told why you are being searched and under what power and a record of the search should be made.

 

How are section 60 searches authorised?

An officer of inspector rank or above can authorise searches within an area for up to 24 hours. He can only do so if he reasonably believes that:

–    incidents of serious violence may take place and an authorisation is required to prevent their occurrence; or

–    an incident of serious violence has taken place, a dangerous instrument or offensive weapon is being carried, and authorisation is required to find it; or

–    persons are carrying dangerous weapons or offensive weapons without good reason.

 

How are section 47A searches authorised?

A senior police officer can give an authorisation for searches in a specified area if he reasonably suspects that an act of terrorism will take place and reasonably considers that the authorisation is necessary to prevent such an act. Also, that the specified area is no greater than necessary for a duration that is no longer than necessary to prevent such an act.

Under this authorisation an officer may stop and search a vehicle, driver, passenger, pedestrians (including anything carried by them) but only for the purpose of discovering whether there is anything which may constitute evidence of use for terrorism or that the person is a terrorist.

 

How may we help?

The above is only a basic and brief outline of the relevant law. We can advise you on the legality of any search and/or the admissibility of any evidence found during the search. If you would like to discuss any aspect of your case, please contact us on 0113 247 1477 or email us at [email protected].