AuthorSolicitor, Advocate. Director Ashmans Solicitors Archives
August 2023
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Section 146 of the Criminal Justice Act 2003 states that if the following circumstances are present, it must be treated as an aggravating factor during sentencing, and in this article we look at ways that you can mitigate its effect:
Those circumstances are -- That, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on --
that the offence is motivated (wholly or partly) -- (i) by hostility towards persons who are of a particular sexual orientation, (ii) by hostility towards persons who have a disability or a particular disability, or (iii) by hostility towards persons who are transgender. "Disability" means any physical or mental impairment and references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment. Sexual orientation means (see s 12 Equality Act 2010) a person's sexual orientation towards --
Awareness & Mitigation On occasion, aspects of hostility can be seen to be deep-rooted in a person's upbringing, and there can be a strong case made for addressing these issues before any sentencing hearing. This is an aspect of restorative justice that can significantly influence any sentence. In O'Brien [2004] EWCA Crim 2572 the court observed: "The importance of the Restorative Justice Programme has been stressed in the courts. It is a significant matter when victim and offender agree to meet if the outcome is a settled and clear intention to keep clear from crime in the future and to acknowledge the effect on the victim and the seriousness of the past offence. This court in R v Collins [2003] EWCA Crim 1687 stressed the need for courts to bear in mind, when sentencing, the significance of such a programme which was described by this court as being by no means a soft option." We will always seek to find ways to minimise both the sentence passed and also the chances of future criminality. Do not hesitate to contact us and discuss the pro-active ways in which we can work with you and others to produce the very best outcome in your case. 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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On 20 October 2018 police on uniformed patrol identified a vehicle of interest to them. They followed it for a short distance before causing it to stop. A Mr Jenkins was the driver and a female, Ms Price, was in the front passenger seat. On searching the vehicle, a stun gun was found in the glove compartment. It was an agreed fact that Mr Jenkins knew at the time that the stun gun was in the car and that he was the owner, driver and registered keeper of the vehicle at the time.
Mr Jenkins gave oral evidence in his defence including as to how the stun gun came to be in his car, namely that it was put in the glove compartment by his passenger, Ms Price. He said that he did not know that Ms Price had the stun gun until she produced it in the car only very shortly before the police apprehended him. When she did so, he told her to “get that thing away from me”. She then placed the stun gun in the glove compartment. He believed that she would remove the stun gun from the car when he dropped her back home. Jenkins was charged with being in possession of the stun gun and was convicted by magistrates. He sought to appeal that conviction by way of case stated (an appeal on a point of law to the High Court). What was the basis of the appeal? The argument was that there was insufficient evidence for a finding that Mr Jenkins exercised words or actions revealing such power or control of the stun gun as could fairly amount to possession of it. Mr Jenkins had only the “barest custody” of the stun gun such that he did not have it (relying on Sullivan v Earl of Caithness [1976] All ER 844). Heavy weight was placed on Mr Jenkins’ direction to Ms Price to get the stun gun away from him. This is said to be clear evidence that he was not in control of the stun gun, let alone assenting to be in control of it. It was the very opposite of exercising control or assenting to be in control. What did the court decide? In rejecting the appeal and upholding the conviction, the court stated:
What could he have done differently? He could have insisted Ms Price leave the car with the stun gun; he could have left the car in the event that she refused. Whilst Mr Jenkins may have expressed concern at the outset, any objection did not prevent him from voluntarily continuing on his way with the stun gun in place. The fact that the period of possession was short-lived did not afford Mr Jenkins any defence. 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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Counter Terrorism and Sentencing Bill5/22/2020 Following on from the terror attacks at Fishmongers Hall on 29 November 2019 and in Streatham on 2 February 2020 the government has announced the next phase of its tougher approach to terrorism offences.
What are the aims of this proposed legislation? The Counter-Terrorism and Sentencing Bill, is designed to further strengthen the approach taken to the sentencing and release of terrorism offenders. It aims to ensure that serious and dangerous terrorism offenders will spend longer in custody, "properly reflecting the seriousness of the offences they have committed". The government argues that this provides both "better protection for the public", and more time in which to "support their disengagement and rehabilitation through the range of tailored interventions available" while they are in prison. The Bill also provides for an improved ability to manage and monitor those of "terrorism concern" when they are released, allowing for longer licence periods, and more effective additional interventions where this is required. What is proposed?
We will be monitoring the passage of this bill through parliament and are ready to advise any client on the potential implications of this complex piece of legislation. 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. Call our Solicitors In London
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It is quite common to read in a newspaper that someone has been arrested. Local papers will cover almost any story of interest, and national media if the case involves a high-profile person.
For the person being investigated, such publicity can be devastating, as many people will conclude that there is 'no smoke without fire'. The press rarely reports later if no action has been taken against the person investigated. There are very few safeguards against pre-charge publicity, and except for teachers, where the law offers some pre-charge protection, the press treats all such reports as fair game. Solicitors in London That approach may be about to change following a Court of Appeal ruling. The court held that that in most cases there is a right of privacy pre-charge: "...those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire)." The court reminds us of the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty. On the other hand, freedom of expression is almost an essential right; otherwise, people may not be adequately held to account, and the media could become the puppet of the rich and famous. The judgment only offers very general guidance on the balancing exercise that must be carried out, but the critical point is the starting position of privacy in most cases pre-charge. Factors to be considered include: (1) does the story contribute to a debate of general interest? (2) how well-known is the person concerned and what is the subject of the story; (3) the prior conduct of the person concerned; (4) the method of obtaining the information and its veracity; and (5) the proportionality of the interference with the exercise of the freedom of expression. This does not mean that the police must never name a suspect, nor that the press is prohibited from naming someone in every case, but it will severely curtail the amount of reporting that we see at present. What action can you take? If you fear that you will be named as a suspect in a criminal investigation, then you should seek urgent legal advice, we can liaise with the press on your behalf and if necessary seek injunctive relief preventing publication. Especially if you have been released under investigation. 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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Why is being released under investigation controversial?
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Changes to the prison adjudication rules came in to force on 15 May 2020 and will remain in place until 25 March 2022, unless revoked earlier. The changes are in response to the Coronavirus pandemic.
What has changed? The rules cater for the situation where a disciplinary charge has been referred to an Independent Adjudicator ('IA'). The new rules enable the Chief Magistrate to refer charges back to the governor, who will be able to respond in three ways (as they already can under the Prison and YOI Rules): i) a dismissal; ii) continue with the charge at governor adjudication level, or; iii) determine the charge is sufficiently serious that it must be dealt with by an IA and refer to the IA again. A governor will have 14 days to inquire into a charge from when the Chief Magistrate has determined that an IA cannot inquire into the charge. The charge is to be treated as a charge inquired into by a governor and cannot receive a punishment set by an IA. Why is this change necessary? The government argues that there is an increasing challenge in the ability for IA's to hear charges in the context of coronavirus. However, the existing legislation contains no express power which allows an IA to refer a case back to the governor. There is an increased risk that a significant number of serious cases will be dismissed because of the amount of time which will have passed before an IA is able to hear the charge. This could undermine the integrity of the adjudication system, send a message of impunity in prisons and risk employee relations. These changes have some potential advantage in that the available penalty will now in many cases be much lower, but on the other hand, the independent element is removed. We stand ready to scrutinise the proper implementation of these changes, and any person who has concerns should take legal advice as soon as possible. If you have any concerns then speak with the best solicitors London. How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors 03330096275 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. Alternatively email us [email protected]
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In a recent case, the Court of Appeal dealt with an appeal by the Attorney General against a sentence of 30 months imprisonment imposed following a guilty plea to various firearms offences.
The basis of plea, accepted in full by the prosecution read: "[that] he converted weapons as a hobby, the weapons were not distributed, and he had no connection with violence or organised crime. He had never sold or given away any of the altered firearms and had no intention of doing so." The officer in the case (a Detective Constable and his supervisor, a Detective Sergeant) agreed that the offender's working area (the garden shed) had the hallmarks of a hobby rather than a professional operation. The tools he used were available from DIY shops and were neither specialist nor extensive; and there was no evidence or intelligence to suggest that the offender sold, offered for sale, loaned or hired the firearms to others. There was also no link between the offender and organised crime, and no link between the firearms and any outstanding crime. The offender was aged 54 and in long-term employment. He had however been convicted previously of a relatively minor firearms offence. The issue, in this case, was whether there were exceptional circumstances not to impose a sentence of at least five years imprisonment (the mandatory minimum term). At the sentencing hearing the prosecution relied on the factors identified in R v Avis [1998] 2 Cr App R(S) 178. First, the nature of the weapon: the firearms had been converted and were potentially lethal; there were four prohibited firearms; and ammunition was available that could have been used in at least three to them. Second, use: it was accepted the firearms had not been used. Third, intention: it was accepted the offender's intention was to possess the weapons himself as a hobby. Fourth, previous convictions: the offender had a recent relevant conviction and, on his own admission, knew that his conduct was illegal. It was further submitted that there was a risk to the public as the weapons could have fallen into the hands of criminals. However, no authorities relating to exceptional circumstances were drawn to the court's attention. The judge found that exceptional circumstances meant that ‘not ordinary’ but not ‘extraordinary’ in the sense of wholly remarkable. The ‘ordinary type of case usually involves a criminal background’, with guns either being used or made available to criminals. The instant case was ‘quite different’, involving possession and a hobby with a background of fascination with guns. No specialised tools were used to convert the firearms. There was no known link to criminal gangs and no attempt to sell the converted firearms. The offender was not ‘the ordinary type of firearms offender’. The judge held that there were exceptional circumstances, although the case remained a serious one bearing in mind the factors set out in Avis. The weapons were genuine and there were relevant previous conviction and the firearms were not securely stored. If they had been stolen they would have found a ready market. The judge identified a starting point of 5 years' imprisonment. However, taking into account exceptional circumstances that he found, the basis of plea accepted by the prosecution and credit for the offender's guilty pleas the sentence was reduced to two-and-a-half years' imprisonment on counts 1 to 4 and 18 months on the remaining counts. The Court of Appeal made the following observations: "It is unfortunate that, although the judge was referred to the case of Avis, he was not referred to two recent cases which might have assisted him in deciding whether to impose a mandatory minimum sentence. In Nancarrow [2019] 2 Cr App R(S) 4, this court set out at paragraph 19 a number of points which were relevant to sentencing where section 51A(2) applied. First, the purpose of a mandatory minimum is to act as a deterrent. Second, circumstances are exceptional if the imposition of a 5-year sentence would be arbitrary and disproportionate. Third, such circumstances must be truly exceptional to avoid undermining the intention of Parliament. Fourth, the court should take a holistic approach and consider whether the collective impact of all the relevant circumstances make the case exceptional. Fifth, the court should always have regard to the four questions set out in Avis: what sort of weapon it was? What use was made of it? With what intention did the offender possess it? What was the offender's record? Sixth, the circumstances of the offender are important. It would be relevant, for example, if an offender were unfit to serve a 5-year sentence or if such a sentence might have a significantly adverse effect on his health. Seventh, each case is fact specific and limited assistance will be gained from referring the court to decisions in cases materially identical. Eighth, unless the judge is clearly wrong in identifying exceptional circumstances where they do not exist or clearly wrong in identifying exceptional circumstances where they do exist the court will not readily interfere." The Court held that the sentencing Judge had wrongly applied the law, stating that: "The statutory purpose which underlies the statutory minimum is deterrence: to prevent such weapons coming into the hands of criminals who will deploy them in the course of committing the most serious crimes: murder, robbery and supplying Class A drugs in large quantities. Although his interest in them was a hobby, the offender well understood what he was doing constituted serious criminality. He understood the danger which the guns posed in the wrong hands and the lack of security in relation to their storage. As the judge noted, if a burglary had taken place, the guns had a ready purchaser in the criminal marketplace, resulting in extreme danger to the public." "Ultimately the test would be whether the imposition of the minimum sentence would lead to a sentence that is arbitrary or disproportionate. However, the answer to that question must be considered in the light of the clear statutory intent that the offences to which section 51A apply must be met with strong deterrent sentences. This will mean that in some cases the sentence will be a harsh sentence and may appear particularly so where the offender has pleaded guilty." The sentence of 30 months was quashed, and a sentence of 5 years imprisonment substituted. This case is another stark reminder that firearms cases almost always attract severe deterrent sentences, and even in cases where a Judge acts more mercifully, the prosecution may seek to appeal the sentence. How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors 03330096275 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. Alternatively email us [email protected]
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The Far Right & Terrorism5/7/2020 When people hear reference to the far-right many would think of racism rather than terrorism. Alice Cutter and Mark Jones were members of the banned far-right group National Action along with Garry Jack, Daniel Ward and Connor Scothern. The members were the subject of a counter-terrorism investigation, and when Ward was told he was being arrested under the Terrorist Act, he replied: "that's nuts". This would tend to suggest that he didn't view himself as a potential terrorist.
National Action been a proscribed terrorist organisation, under the Terrorism Act 2000, since 2016 and was the first far-right group to be proscribed since the second world war. In the last of several related trials, Alice Cutter and the other four members referred to were convicted of terror offences at Birmingham Crown Court. The conviction related to their membership of a proscribed organisation. What is a proscribed organisation? Under the Terrorism Act 2000, the Home Secretary may proscribe an organisation if it is believed it is concerned in terrorism, and it is proportionate to do so. Being concerned in terrorism means that the organisation commits or participates in acts of terrorism, prepares for terrorism, promotes or encourages terrorism (including the unlawful glorification of terrorism) or is otherwise involved in terrorism. Why was National Action proscribed? The then Home Secretary described the group as a "racist, antisemitic and homophobic organisation which stirs up hatred, glorifies violence and promotes a vile ideology. It was proscribed following an assessment that it was concerned in terrorism as the online material frequently featured violent imagery and language and promoted and encouraged acts of terrorism following the murder of the MP Jo Cox. By proscribing it, the aim was to prevent membership from growing, stop the spread of propaganda and to protect vulnerable young people at risk from its "toxic views". During the trial, the court heard how Cutter had made comments about Jews, including fantasies of murder and ethnical cleansing. She had also featured in a Miss Hitler competition, which had been a publicity stunt to attract more members. What sentence was imposed? Alice Cutter and her co-accused have not yet been sentenced. The offence, however, is one which carries up to 10 years imprisonment. How can we help? If you need specialist advice, then get in touch with Ashmans Solicitors in London and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
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For some new drivers, six penalty points mean resitting a driving test, for other drivers twelve points may mean disqualification.
It is therefore vital to ensure that a single piece of driving is not unduly punished when it comes to the imposition of penalty points. To explain the issues that can arise, we will use the following examples: (1) Jane is observed by a police officer to be driving at excess speed and in an erratic manner. Jane is subsequently prosecuted for speeding and careless driving. (2) Edward has driven from his home in Nottingham to his holiday home in the Lake District. On that journey, he committed two speeding offences, detected by cameras some 100 miles apart. He receives two fixed penalty notices. As a starting point, many might think that a double punishment for Jane is a little harsh but perhaps deserved for Edward (and others may disagree entirely!). What does the law say about this situation? The starting point is section 28(4) Road Traffic Offenders Act 1988, which provides: "Where a person is convicted (whether on the same occasion or not) of two or more offences committed on the same occasion and involving obligatory endorsement, the total number of penalty points to be attributed to them is the number or highest number that would be attributed on a conviction of one of them (so that if the convictions are on different occasions the number of penalty points to be attributed to the offences on the later occasion or occasions shall be restricted accordingly)." So, the key consideration in both of the examples above is whether the offences were indeed committed 'on the same occasion'. When we consider Jane's case, there is no doubt at all that the speeding and careless driving were committed on the same occasion. But what about Edward, where the offences were committed some 100 miles apart. Is it significant that it was a single journey from A to B? Would it matter if he had broken the trip by stopping for petrol or a rest break? Edward's case is more tricky to resolve than Jane's. Still, the difference in outcome could have significant ramifications for Edward, so in cases such as this, we fight very hard to minimise the sentencing outcomes. There is a lack of English case law on this topic, and a significant difference of approach between the English and Scottish courts. Failing to stop and then failing to report arise out of the same incident and therefore are offences on the same occasion (Johnson v Finbow [1983] 1 WLR 879). A decision of the Scottish High Court, McKeever v Walkingshaw (1995) 1996 SLT 1228 decided that a single course of driving may give rise to offences having occurred on more than one occasion (speeding and then less than two miles later committing a further offence). Similarly, a moving traffic offence which resulted in the driver being stopped and asked to give a specimen of breath (which he declined) was held to be separate occasions (Cameron v Brown (1996) 1997 SLT 914). Whether offences occur on the same occasion is primarily a matter of fact. Don't fall fowl of Totting up points and then loose your licence. Therefore, in every case where we act, we ready ourselves for any argument that might present itself. We hear of lots of situations where double or greater punishment is imposed, in circumstances where there was a solid argument to invoke the protection of the statute. How can we help? If you need specialist advice, then get in touch with Ashmans Motoring Offence Solicitors London and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances. |