AuthorSolicitor, Advocate. Director Ashmans Solicitors Archives
August 2023
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Local Authority Prosecutions4/29/2020 The local authority has the power to prosecute in respect of a number of types of crime.
This could be certain types of benefit fraud, fly-tipping, fraudulent use of a blue badge, health and safety offences, noise nuisance, irregular school attendance, issues with taxi licensing and breaches of planning notices. Can they prosecute anything? Section 222 of the Local Government Act 1972 says a local authority can prosecute "where a local authority considers it expedient for the promotion or protection of the interests of the inhabitants of their area." Thurrock Council entered into an arrangement with the Legal Aid Agency to provide the services of the Council's fraud department for investigations. The Council prosecuted people in a firm of solicitors for offences of fraudulent claims to the Agency. It thought that it met the conditions of section 222 as inhabitants of Thurrock were entitled to apply for legal aid so the scheme should not be defrauded. Further, the people benefited from the income brought to the Council from fees. Those being prosecuted argued that the Council was acting outside its powers. The Court agreed, saying that the Council could not have reasonably thought that there were any proper grounds to consider that the prosecution was expedient for the promotion or protection of the interests of the inhabitants of Thurrock. Nor did the financial justification come close to meeting the requirements of section 222. The Court held that the proceedings had commenced unlawfully. The prosecution was able to continue, however, as the Director of Public Prosecutions took over. Are the offences less serious? It is important to note that just because a prosecution is carried out by the local authority rather than the Crown Prosecution Service, it does not mean the matter is less serious. A prosecution will still result in a conviction if you plead or are found guilty. In appropriate cases confiscation proceedings (‘proceeds of crime’) may also be pursued. If you are asked to attend an interview with the local authority, you will be interviewed under caution. What you say in an interview can be used against you in Court, so good advice is essential. Just because you are not in a police station does not mean you can't have a solicitor present. How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. Speak with our criminal Solicitors in London.
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Mitigation4/22/2020 The dictionary definition of "to mitigate" is to lessen in force or intensity, to make less severe. Mitigation is the act of reducing how harmful, unpleasant or bad something is, something that causes the court to judge a crime to be less serious or to make a punishment less severe.
There are obvious mitigating factors that most people know about, such as an early guilty plea or not having any previous convictions. If for example you have a driving offence but have mitigating circumstances then call our driving defence solicitors London A recent case at the Court of Appeal, R v Sanyaki, highlighted a mitigating factor that some may not have considered. Sanyaki was a student nurse, over a four-month period she photographed the front and back of credit cards belonging to other students. She then used the details to pay for goods and services totaling around £7,000. She pleaded guilty to fraud and also the theft of a driving licence and credit card belonging to a student. The student appealed against the ten-month period of detention that was imposed. She was 18 at the time of the offending in her first year of an adult nursing course. She was asked to leave university when the offences came to light and found a job as a full-time care assistant. She was 20 at the time of sentence and of previous good character. The sentencing judge took the view that the sentence could not be suspended as it was a prolonged course of conduct, stealing the details of a variety of different people. The Court of Appeal is slow to interfere with an exercise of judgement as to whether or not to suspend a sentence where all relevant considerations have been taken into account. The Court will only interfere if the decision was plainly wrong in principle or results in a sentence which is manifestly excessive. In the case of Sanyaki, it was found that the judge did not weigh all the relevant considerations in considering whether to suspend the sentence. The Court of Appeal considered that the sentence should have been suspended. They stated that students who do this kind of thing can expect no concessions from the court. However, the effect of a conviction on future careers, particularly those of previous good character and where the offences were committed when they were young, is a piece of personal mitigation that cannot be overlooked. The fact that she was a student, therefore, was a mitigating factor as the Court considered the impact that the sentence was going to have on her career, although she would not be able to continue her nursing course and her job as a care assistant. Sanyaki's appeal was successful, and her sentence was suspended, and she was to complete unpaid work hours. How can we help? We are experts in mitigation and have extensive knowledge of the sentencing guidelines and keep up to date with case law, such as the case of Sanyaki. Our advocates are best placed to secure the most favourable sentencing outcome on your behalf. Call our crime solicitors London If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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Appeals4/22/2020 There are several types of criminal appeals.
Appeals against conviction or sentence Cases start in the Magistrates Court. If you want to appeal against a conviction or sentence in that Court, you can appeal to the Crown Court. If you are dealt with in the Crown Court and want to appeal against a conviction or sentence, you appeal to the Court of Appeal. The crucial difference between these two appeals is that to appeal to the Court of Appeal, you have to set out your grounds for appeal fully. A Single Judge then considers these grounds. If the Single Judge grants permission the appeal is heard by the Full Court. If permission is refused, you can still ask for the Full Court to consider the grounds, but there may be consequences if there is a refusal, and the legal aid position is also uncertain. From the Court of Appeal, the right of appeal is to the Supreme Court. Leave to appeal must be granted by the Court of Appeal or the Supreme Court. The test is whether a point of law of general public importance is involved in the decision that ought to be considered by the Supreme Court. Such appeals are rare. Strict time limits apply for appeals and permission has to be requested for leave to apply out of time. It should never be assumed that an appeal out of time will be permitted, even if the delay is only for a very short period. If you feel that you have been unfairly treated call our crime solicitors London Case Stated If you disagree with a finding made against you in the Magistrates’ Court or certain matters in the Crown Court, you can appeal to the High Court by way of case stated. A decision means a final one in terms of what can be reviewed. The essence of this type of appeal is that either the initial decision was wrong in law, or the Court acted in excess of its jurisdiction. There is a 21-day time limit and no power to extend that limit in a case from the Magistrates' Court. The time limit runs from the conclusion of the case. Judicial Review A judicial review is a challenge to the way in which a decision has been made. The Court is not concerned with the conclusion as such (unless it was plainly unreasonable), just whether the right procedures were followed. A judge cannot quash or declare a decision unlawful purely on the basis that he would have made a different decision. The three main grounds of judicial review are illegality, procedural unfairness and irrationality. Additionally, a decision can be overturned if a pubic authority as acted in a way which is incompatible with human rights under the Human rights Act 1998. A judicial review challenge must be brought ‘promptly’, and in any event within 3 months, so even a short delay may prove fatal. As can be seen from the above, the routes by which decisions can be challenged are themselves many and varied, and in some instances they overlap. The decision as to which route to follow is one that we can make having considered all of the circumstances of your case. If appropriate we will instruct specialist counsel to advise. The key thing, in all cases, is to seek legal advice without delay. How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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In some instances, more than one person can be responsible for causing death by dangerous driving.
An unusual case arose recently where the "driver" of a car which was stationary on the hard shoulder was charged with causing death by dangerous driving. “A” was the driver of the car on the hard shoulder. She was the designated driver taking her drunk friends’ home in the early hours of the morning. “A” became irritated by her friends arguing and pulled over onto the hard shoulder. She set off driving again before pulling back onto the hard shoulder. She was not displaying her hazard lights, and a passing car sounded his horn at them as they had a car door open near to the highway. This time the vehicle was on the hard shoulder for about fifteen minutes. “L” was driving a truck which, for some reason, swerved across the lanes and struck A's car on the hard shoulder. One of A's passengers was killed, and “A” and another passenger were seriously injured. “A” was prosecuted on the basis that she was 'driving', that the driving was dangerous and that it was a contributory factor in the collision. The first trial judge accepted the defence argument that the chain of causation was broken. In his judgment, it was not reasonably foreseeable that a third party, at 4.30am, in light traffic, would be so distracted that he would suddenly career across three lanes onto the hard shoulder. He was satisfied that L's driving was a new and intervening act that broke the chain of causation. “A” was undoubtedly the driver of her car, even though it wasn't moving, and it was also arguable that what she did was dangerous as she should not have stopped on the hard shoulder, other than in an emergency. As the judge took this decision, known as a terminating ruling, the case did not go before the jury. The prosecution appealed that decision saying that the jury should consider these issues. They argued that the prosecution just had to show that A's driving was a cause, not the cause. The Court of Appeal decided that the judgment was wrong. The law did not require that the particular circumstances should be foreseeable. What had to be sensibly anticipated was that another vehicle might leave the carriageway and collide with the parked car. The case was sent back to the Crown Court for “A” to stand trial for the charge of causing death by dangerous driving. Don't let totting up points loose your licence. Find out if can you go to jail for dangerous driving. If you think you have been unfairly sentenced or facing a prosecution then get in touch with our motor solicitors How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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Sentencing Outside of the Guidelines4/6/2020 The courts are provided with guidelines to assist in determining the appropriate sentence for a wide, and ever-expanding, range of offences.
The guidelines provide guidance on factors the court should take into account that may affect the sentence given. Different levels of sentence are set out based on the harm caused and how blameworthy, or culpable, the offender is. Once the level of harm and culpability are decided, the person sentencing is provided with a sentencing range. That range could be a fine up to a community order, or, for example, a range of two to six years' imprisonment. If you think you have been wrongly sentenced then get in touch with our Criminal Solicitors London Do courts have to sentence within the "range"? Section 125(1) of the Coroners and Justice Act 2009 makes it clear that every court must follow any relevant sentencing guideline: "unless the court is satisfied that it would be contrary to the interests of justice to do so". In addition, a Judge is entitled to determine that a case falls within a higher category, without actually departing from the guideline in accordance with section 125. An example case Anthony Owen was convicted of burglary with intent to steal, and he was sentenced to nine years' imprisonment. The conspiracy was in relation to commercial premises where it was intended that four trailer units filled with tobacco would be stolen. The value of the goods would have been in the region of £12 million. Owen was aged 64 at the time he was sentenced and had some convictions, although they were old and therefore ignored. The maximum sentence for a non-dwelling burglary is ten years. In Owen's case, the judge decided it was a case of greater harm and higher culpability, which meant it was a category one offence. That provided a range of one to five years. The Court of Appeal agreed that this was a case where it was appropriate to go outside of the sentencing levels in the guideline. It was a serious offence, with high culpability in a number of different respects. Although Owen wasn't a ringleader, he was integrally involved, and the trial judge had been in a good position to assess his role. Having considered all relevant factors, the Court of Appeal decided that the sentencing judge had adopted too high a starting point. A sentence of seven years and six months was substituted. The substituted sentence was still outside of the sentencing range as although there had been no financial loss; the loss would have been substantial. The judge had also rejected the suggestion that there had been poor planning and execution and the Court of Appeal saw no reason to interfere with that assessment. Complexity in sentencing The above case illustrates very well just how complex sentencing can be, even when we have guidelines to assist. In some cases, we can give very accurate sentencing predictions, but in some instances, there will be a margin of appreciation that can be very wide. We scrutinise all sentencing decisions with great care and will not hesitate to advise on appeal when the Judge has stepped outside the acceptable range. Our detailed knowledge of the guidelines and caselaw means that you can always be assured of a fair outcome. How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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Expert Evidence4/1/2020 Expert evidence is used to provide information to the court, which is likely to be outside of the knowledge of the magistrates, judge or jury. Opinion evidence can be given if the expert is qualified to provide such an opinion.
Duty of an expert witness An expert is under a duty to help the court by giving opinion which is objective and unbiased in relation to matters within their expertise. The duty is one which is owed to the court rather than the party who is providing the instructions. The Criminal Procedure Rules require an expert to provide certain information such as any potential conflict, an appeal which has been allowed due to a deficiency in their evidence, convictions or adverse judicial comment. Fraud Solicitors London Will an expert always be heard? Applications can be made to exclude expert evidence if it is argued its prejudicial effect outweighs its probative value. The courts have also indicated a willingness to exclude expert evidence if it is insufficiently helpful to a jury in reaching its conclusions. The court can also reject evidence, for example, if it decides that an expert has not properly established his independence or has not complied with his duty to the court. We will not hesitate to challenge experts called to give evidence by the prosecution if there is a prospect of exclusion. Mortgage Fraud Solicitors London What types of expert are used in criminal cases? There is a wide range of relevant expertise in criminal law. This could include forensics such as DNA and fingerprints or footwear marks, facial recognition where identification from a still or CCTV is in issue, medical experts in respect of injuries, psychiatric or psychological reports, autopsies or gait analysis. Insurance Fraud Solicitors London How do you find an expert? We have a register of tried and tested experts in every discipline. An expert witness is not just an expert in their field, they have additional skills such as report writing and experience of giving evidence in court. It is important, therefore, to get the right expert witness for your case and we can do this for you. Vat Fraud Solicitors London How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. |