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August 2023
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Environmental protests across London have caused massive disruption across parts of London and are set to spread across other towns and cities over the coming weeks and months.
Public protest has always been a legitimate and important part of the democratic process and is enshrined in law. But, how do the police balance the right to protest as against the rights of other people to go about their business unimpeded? Why are people protesting? Extinction Rebellion has organised the protests; a group concerned about the environmental destruction of our planet. Frustrated that other attempts to force change in governmental behaviour have changed, they have resorted to a new form of peaceful protest, on its website they claim: ‘Civil disobedience works when it’s peaceful, respectful, disruptive and undertaken en masse. We don’t want to disrupt people, but our Government’s failure over the last 30 years leaves us no choice. If we had functioning democracies, we wouldn’t need to. We’ve tried petitions, marches, letters, reports, papers, meetings, even direct actions; and emissions have continued to rise. Governments prioritise the short term interests of the economic elites, so to get their attention, we have to disrupt the economy. They have left us with no other option.’ In London the protesters have blocked major roads and bridges, leading to significant chaos and disruption. What has the police response been? The Metropolitan Police set out the dilemma in this way: ‘The serious disruption the Extinction Rebellion demonstrations are causing to people in central London and beyond is unacceptable and we completely understand the concern it is causing to those who are disrupted by it. Ultimately, the Met has a duty to balance the rights of those engaged in protest and who are acting within the law, against the needs and rights of Londoners to go about their daily lives with minimum disruption. Where people are not acting within the law we continue to arrest them, and we anticipate arrests continuing to rise. We are also working closely with partner agencies, Transport for London, British Transport Police, City of London Police, City of Westminster and the Mayor’s Office, as well as the business community.’ ‘…we will have had more than 1,000 officers on the streets policing the demonstrations. This is putting a strain on the Met and we have now asked officers on the boroughs to work 12-hour shifts; we have cancelled rest days and our Violent Crime Task Force (VCTF) have had their leave cancelled. This allows us to free up significant numbers of officers whilst responding to local policing. We would also like to reassure people that we have ring-fenced the VCTF so we retain the capacity to deal with any unrelated violent incidents. However, the protesters need to understand that their demonstration is meaning officers are being diverted away from their core local duties that help keep London safe and that this will have implications in the weeks and months beyond this protest as officers take back leave and the cost of overtime.’ Is anyone being arrested? It is an almost unique feature of this protest that people are aware of the risk of arrest and are willing to be arrested – this ironically presents an incredibly difficult policing challenge. The police say: ‘…we have arrested more than 460 people, the large majority for breach of Section 14 [of the Public Order Act 1986) and obstruction of the highway. Of those arrested, so far eight people have been charged with those offences. At this stage it is better for us to keep our resources and custody capacity moving and flexible than leave protesters sitting in cells for up to 12 hours before going to court for what, although highly disruptive, are lower level offences. So everyone else arrested has been released under investigation and will be brought back to be formally interviewed and charged as appropriate in due course. We are aware that means some protesters immediately return to the area to resume their activities; those people will be arrested again.’ (By Saturday 20th April the number of arrests had risen to almost 800). Will all those people be prosecuted? This remains to be seen, but potentially thousands of contested prosecutions would place an immense strain on the criminal justice system, so many people think that those released without charge will face no further action. Are there any legal defences to these charges? There are several defences potentially available although the lawful right to protest peacefully is not an absolute one, and case law is generally unhelpful. There are some developing areas of legal challenge and these are the ones that defence lawyers will be concentrating their efforts on. Law is a living instrument and must develop as society responds to concerns such as the ones raised by these protestors. We anticipate that there will be a good number of legal challenges flowing from these protests. People must, however, be prepared to face arrest, prosecution and possibly a criminal record and must individually decide whether that is a price worth paying. How we can assist If you need specialist advice, then get in touch with Ashmans Solicitors 03330096275 and let us help – if you are arrested ask for us by name, the police can contact us so that we can speak to you privately. Alternatively email us [email protected]
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'Hung Jury' - Not as Bad as it Sounds6/27/2019 Last week the Hillsborough trial involving ex-police officer David Duckenfield ended without reaching a conclusion; a number of papers reported that there was a 'hung jury' - so, what does that mean?
In an ideal world, a jury will reach a clear conclusion by either convicting or acquitting the defendant. In a case with 12 jurors at least 10 must agree on the verdict, so if the numbers fall short, for example, 8 wanting to acquit, 4 wanting to convict, that is not an acceptable verdict. If the jury indicates that they will not be able to reach a verdict in accordance with the law, the jury will need to be discharged. In legal terms, this is often referred to as a 'hung jury'. What happens next? The prosecution can apply to have the defendant tried again, and this is the outcome in most cases. The decision is one for the trial Judge who will consider whether or not it is in the interests of justice for a retrial to take place. Typically, the court considers questions which include (but are not limited to) whether the alleged offence is sufficiently serious to justify a retrial; whether, if re-convicted, the appellant would be likely to serve a significant period or further period in custody; the appellant’s age and health; and the wishes of the victim of the alleged offence. If prosecutorial misconduct is alleged then other factors will come into play, analogous with whether it is an abuse of process to allow a retrial. In most cases, the defence will not be able to properly resist the application, but we would always carefully consider all relevant factors and object if able to. What happens if a new jury still cannot reach a verdict? The usual practice in this scenario is for the prosecution to offer no evidence, although there are rare circumstances where a further retrial could take place. How we can assist We are specialists in all aspects of criminal law and procedure, if we can assist you with any criminal investigation or prosecution then contact Ashmans Solicitors 03330096275 for prompt assistance. Alternatively email us [email protected]
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Appeals from Beyond the Grave6/27/2019 The Court of Appeal has handed down judgment in the case of R v Max Clifford, the disgraced celebrity PR guru who was convicted in 2014 of a number of sexual offences and sentenced to 8 years imprisonment.
Clifford died in 2017, so why did the appeal proceed? Section 44A of The Criminal Appeal Act 1968 provides that: '...any relevant appeal which might have been begun by him had he remained alive may be begun by a person approved by the Court of Appeal ...' Approval for the purposes of this section may only be given to: (a) the widow or widower or surviving civil partner of the dead person; (b) a person who is the personal representative (within the meaning of section 55(1)(xi) of the Administration of Estates Act 1925) of the dead person; or (c) any other person appearing to the Court of Appeal to have, by reason of a family or similar relationship with the dead person, a substantial financial or other interest in the determination of a relevant appeal relating to him. In Clifford's case, the Court of Appeal consented to his daughter pursuing an appeal that was commenced before his death. Was there any point? An appeal, notwithstanding death, can potentially assist with two main objectives: (a) Restoration of a person's good character, and (b) to assist in resisting civil claims. There have been other appeals lodged to clear the name of someone long deceased, the most notable concerning Derek Bentley who was hanged for the murder of a policeman. After many different court challenges, he was finally granted a Royal Pardon. An attempt to clear the name of infamous murderer Dr Crippen hit a stumbling block in 2009 when the Criminal Cases Appeal Commission refused to refer the case to the Court of Appeal. The Criminal Cases Review Commission decided James Crippen was not a "properly interested person" in the case and there was no real possibility the Court of Appeal would hear it. "Without an individual who has a real possibility of being approved by the Court of Appeal, there could be no court hearing and so no purpose would be served by the commission carrying out a review of the case," said a CCRC spokesman. Did the Clifford appeal succeed? It didn’t, the court refused leave. How We Can Assist We are experts in criminal law, if you are concerned about a conviction or sentence, even if that is in relation to a person who is no longer alive, do not hesitate to contact us so that we can discuss your options. Contact Ashmans Solicitors 03330096275 for prompt advice. Alternatively email us [email protected]
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The unimaginable has happened: you’ve been convicted of a crime you didn’t commit.
The lawyers at your trial have told you that there is no hope of an appeal. You can’t afford more legal advice so you decide to look for a cheaper alternative. Surely there must be someone who can help? Perhaps that friend from university who studied law? Or someone who’s website says they are “cheaper than a solicitor or barrister, but just as effective”? Think very carefully before hiring someone legally unqualified to conduct your case. As Paul Wright recently found out, it can cost you dearly. Mr Wright was injured in 2004 when three plastic bags were left inside him during an operation. He hired a “McKenzie Friend”, George Rusz, to support him during his claim and ended up with only £20,000 in damages from the NHS. Worse still – he had to pay £75,000 in costs to the NHS because of the incompetent way Mr Rusz had conducted the case, meaning despite winning he had to pay out £55,000. Fortunately, Mr Wright recovered those costs and the damages he should have got after he sued Mr Rusz for giving negligent advice. He was awarded £336,759 in total. This finally came fifteen years after his injuries. But he may be out of pocket for a lot longer – if Mr Rusz can’t, or won’t, pay it could be years before he sees that money, if at all. If you were to use a McKenzie Friend, or any unqualified person, in conducting a criminal appeal, the consequences might be worse than a financial loss. The Court of Appeal has the power to order, in appeals without merit, that some time already served should not count towards your sentence. You may also face a hefty claim for prosecution costs. McKenzie Friends have a legitimate and useful purpose when they stick to their role – providing moral support, taking notes, and giving advice in court – and do it competently. Before instructing a person to assist with your case ensure that they are properly regulated and insured – if in doubt, check it out. How we can help If you need specialist advice, then get in touch with Ashmans Solicitors 03330096275 and let us help. We can advise on an all aspects of criminal law. Alternatively email us [email protected] Personal Injury Solicitor's Dewsbury
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In February 2019 the Court of Appeal quashed Sally Challen's conviction for the murder of her husband and ordered a retrial.
Last week the prosecution accepted a plea to the lesser offence of manslaughter and Challen received a sentence that meant she would serve no further time in custody. Why was the appeal allowed? Challen advanced two grounds of appeal: 1. The fresh evidence on coercive control and the fresh psychiatrist evidence support the proposition that at the time of killing the appellant was suffering from an abnormality of mind. Had expert evidence on coercive control been available at the time of the trial, the jury may have reached a different conclusion on diminished responsibility. 2. The fresh evidence also goes to the issue of provocation in that it helps establish the appellant was provoked to kill the deceased because of his controlling and coercive behaviour. The foundation for both lines of the challenge was her husband's controlling and coercive conduct, conduct which is now a criminal offence in itself. Section 76 of the Serious Crime Act 2015 criminalises a pattern of abusive behaviour, the individual elements of which are not necessarily unlawful in themselves. This is designed to better protect victims of domestic abuse. Counsel for Challen argued that the courts have recognised the concept of battered person syndrome, but that syndrome focuses on the psychological impact of repeated physical abuse, whereas coercive control focuses on systemic coercion, degradation and control. The lack of knowledge about the theory of coercive control at the time of the appellant's trial, meant that the partial defence of diminished responsibility was not put as fully as it could have been and the defence of provocation was not advanced at all by counsel then representing the appellant. The appellant's actions were not, therefore, put into their proper context. Did the court agree? The court held: "We were not persuaded that had it stood alone the general theory of coercive control on the facts as presented to us would have afforded the appellant a ground of appeal. However, it did not stand alone. We have focused on [the Doctor's] post-conviction diagnosis that the appellant suffers from borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, and suffered from those disorders at the time of the killing. If that is correct, it is in that context that the theory of coercive control may be relevant. We express no view on whether the appellant was the victim of coercive control and no view, if she was a victim, on the extent to which it impacted upon her ability to exercise self-control or her responsibility for her actions. However, because expert evidence was not available to defence counsel at trial, neither the possibility that she was suffering from these two disorders, nor the issue of the impact upon her of the abusive relationship were explored at trial in any detail. The issue of provocation was not advanced at all." Accordingly, a retrial was ordered. In the end the prosecution accepted the plea to a lesser charge of manslaughter (link) in light of overwhelming evidence as to the husband's behaviour and the effect on Challen’s state of mind at the time of the killing. What does this case tell us? From a legal perspective it tells us two things: 1. Coercive control is now a relevant factor to be taken into account when considering what defences might be available; and 2. That as medical and other disciplines evolve, we have to take stock of older cases to see whether those advances might support a fresh appeal. How we can assist If you need specialist advice, then get in touch with Ashmans Solicitors on 0333 009 6275 and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible. Or email us [email protected] |