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Why hasn’t Michael Gove been arrested?8/14/2019 A question on many people’s lips since the former Justice Secretary admitted to using cocaine several times earlier in his career. So, could he face the legal consequences of this? Cocaine is a Class A drug, the most serious category. Drug offences are governed by the Misuse of Drugs Act 1971 and whilst buying a controlled drug in this scenario is not an offence, possession is. It carries up to seven years in prison. Is Michael Gove’s confession enough? Possibly. The Prosecution will usually have to prove that a substance is in fact a controlled drug, and the most convenient way to do that is through a forensic report. In this case, though, the drugs are long gone and can’t be analysed. The prosecution would have to rely on his public confession. A confession was relied on in R v Chatwood [1980] 1 All ER 467 where the Court of Appeal said that a confession could amount to evidence that, on the face of it, the defendant had been in possession where he was expressing an informed opinion. Whether Michael Gove’s opinion could be described as ‘informed’ will be the key question and would likely depend on how often he used the drug. His confession could be used as evidence, however, if he were to be charged with attempted possession under the Criminal Attempts Act 1981. The prosecution could accept that Gove did not actually possess cocaine but allege instead that he had tried to possess it. The maximum sentence is the same. Has it been too long to charge Michael Gove with a drugs offence? No. There is no general ‘Statute of Limitations’ in England and Wales. Offences only triable in the Magistrates’ Court usually have a limit of six months, but possession of a drug is not one of those. He could, theoretically, still be charged. Will Michael Gove be prosecuted? The Crown Prosecution Service would make a decision as to whether a prosecution should proceed. To do this, they apply the Full Code Test set out in the Code for Crown Prosecutors. This is the same for every offence. The Full Code Test has two stages which need to be met. These are the evidential stage, and the public interest stage. In short, there needs to be enough evidence for a realistic chance of conviction, and it must be in the public interest to bring a case. If a case fails either test, it will not be prosecuted. The confession is potentially enough evidence for a case to be brought. A Crown Prosecutor would have to be satisfied that it, and any other evidence, is admissible and leads to a realistic prospect of conviction. Any evidence from Owen Bennett, the City AM political journalist who outed Gove’s cocaine use in his unauthorised biography of the Environment Secretary, or Gove’s political advisors to whom he confessed would need to be carefully considered, and a prosecutor may have grave doubts as to its admissibility. In the event there was enough evidence, the case would also have to pass the public interest stage. A case will usually pass this stage unless there are factors against the prosecution that outweigh those in favour. This stage takes into account a lot of factors, including the seriousness of the offence, the circumstances, any harm caused, impact on any victims, and whether a prosecution is proportionate. The likely penalty would be a small fine or community punishment at most. Therefore, Gove could be prosecuted but it is unlikely in all of the circumstances. Reputationally and politically, this admission could exact a great cost. How we can assist If you need specialist advice, then get in touch with Ashmans Solicitors 03330096275 and let us help. We can advise on all aspects of your case. www.ashmanssolicitors.comSolicitors in Huddersfield Doing a Boris
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Gavin Williamson MP has been sacked from the Cabinet for leaking confidential information from the National Security Council regarding Huawei. Theresa May considers that the matter is closed and won't refer him to the police. However, they can investigate anyway, but would need the cooperation of the Cabinet Office. There are some sensitivities when it comes to investigating the workings of government at Cabinet level.
What crime might he have committed? The Official Secrets Act 1989 covers information like this and applies to the former Defence Secretary because he was a Crown Servant, in other words, a Government Minister. Doesn’t he have to sign the Act? No. There is no requirement for a person to sign the Official Secrets Act, although it is often done to reinforce to members of MI5, MI6 and GCHQ that it applies to them. Certain persons do have to be notified that the Act applies in order to trigger liability for certain offences. What does the Act say? There are various provisions within the Act, two of which may be relevant. They relate to Security and Intelligence, and International Relations. Under each section, a Crown Servant commits an offence if he makes a “damaging disclosure” of any information they have access to because of their job. Members of MI5, MI6, GCHQ, and people who are notified that this part applies to them, commit an offence by making any disclosure. It is this reference to ‘notification’ that leads to people being asked to ‘sign the Act’, but in reality, this is only in relation to people who might not know the importance of the information they might come across. It is possible Gavin Williamson had been notified this applies to him, in which case his leak would seem to be an offence, but we don’t yet know for certain. The Cabinet Office manual does however contain specific reference to the Act, so notification does seem likely to have been in operation. If he hadn’t been notified, he was subject to that part of the Act, the leak would have to be damaging to one of the areas above. This would be by damaging the work of the security and intelligence services or endangers the interests of the UK abroad. Was the leak damaging? Maybe. It may damage the capability of the security and intelligence services to conduct investigations. Sources may not be willing to cooperate if they feel their information will appear in the Daily Telegraph the next day. It could also mean that foreign intelligence agencies, such as Five Eyes, are more hesitant to share information with us. Since the leak related to Huawei and their links to the Chinese Government, it may be that it has damaged our interests in China. Both could count as damage under the Act. But if Huawei are Chinese spies, we need to know! That may be, but there is no “whistle-blower” defence to the Official Secrets Act. Just because it is in the public interest to leak information does not mean it isn’t still a crime. Yorkshire Solicitors Has Gavin Williamson breached the Official Secrets Act 1989? It is possible. There are opposing views at the moment, with Julian Lewis, Chair of the Defence Committee, saying that no secret information was leaked. Other reports say the opposite, and it has been reported that the NSA has already voiced their concerns. Whether there is evidence to satisfy a jury of criminality remains to be seen, and the situation may well be complicated by the role of security services and methods employed in order to gather that evidence. Why not ask the journalist? The journalist will not voluntarily reveal any information given and given journalistic protections enshrined in law it is unlikely that he could be compelled to cooperate. Are the offences serious? If convicted, Williamson could go to prison for up to two years. In the end, it will be up to the police and Crown Prosecution Service, with the consent of the Attorney-General, to investigate and prosecute. Are there defences to the Official Secrets Act? Yes. Crown Servants can show the leak wasn’t damaging. It’s also a defence to show that the disclosure was authorised, or that you didn’t believe the disclosure would be damaging. How we can assist If you need specialist advice, then get in touch with Ashmans Solicitors 03330096275 and let us help. Whilst investigations under the Official Secrets Act are relatively rare, the underlying evidential considerations are things that our experts deal with on a daily basis. Alternatively email us [email protected] Lawyers In Fraud
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Is it possible to know the sentence you might get before you plead?
In some cases, yes, and that might be enough for a defendant to plead guilty. For some, if they know they won’t go to prison, then they won’t fight a trial. In the Crown Court a sentence indication can be sought by asking for a ‘Goodyear direction’. The point of the Goodyear procedure is to allow a defendant to make the choice to plead guilty, which remains entirely their own, with as much information as possible. Dewsbury Criminal Lawyers How can I find out? A defendant is entitled to ask the judge for an indication of the maximum sentence if they were to plead guilty at that stage in the proceedings. This is called a Goodyear indication. Does the judge have to tell me what I might get? It is a matter for the judge whether they wish to give an indication, following guidance from the Court of Appeal in Goodyear [2005] EWCA Crim 888. This guidance is designed to make sure that there is no improper pressure on the defendant, purposefully or not, and no ‘bargaining’ with the judge takes place. What will the judge say? The Court of Appeal said: “In our judgment, any advance indication of sentence to be given by the judge should normally be confined to the maximum sentence if a plea of guilty were tendered at the stage at which the indication is sought.” Can the judge say no? The judge is able to refuse in any circumstances, and is advised in Goodyear to refuse to indicate a sentence where there is likely to be any other pressure on the defendant, or where the judge is unable to properly judge the culpability of the defendant, perhaps because the Crown does not accept the proposed basis of plea. A judge may also defer giving an indication until a pre-sentence report is obtained, or the judge can familiarise themselves with the case sufficiently. Should a judge refuse, a defendant can seek another indication at a later stage. Does a judge have to stick to what they say? If an indication is given, for example that the case will not warrant a custodial sentence on a guilty plea, that indication is binding. It is binding on the judge who made it, but also any other judge who might sentence the defendant. There are exceptional circumstances where an indication might not be binding, but only if it is fair to the defendant. In Shane Newman [2010] EWCA Crim 1566, the defendant had pleaded guilty following a Goodyear indication that the judge said he was wrong to give. The judge offered the defendant the chance to vacate his plea in an attempt to rectify the mistake, but the defendant chose not to. The Court of Appeal agreed this was the correct course and the defendant had not suffered. How long does an indication last? An indication does not subsist indefinitely, however. Where no guilty plea is tendered in response to the indication, it ceases to have effect. Recently, in Jacob Utton [2019] EWCA Crim 1341, the defendant sought an indication. He got one but pleaded not guilty. The following day, he had a change of heart and asked his solicitors to have the case re-listed so he could plead guilty. The trial judge in Utton did not consider she was bound by her earlier Goodyear indication, given that Utton had pleaded not guilty with it in mind. The Court of Appeal agreed that she was not bound by it. So, as you can see sentencing law and procedure remains a minefield for the unwary, fortunately all our solicitors and advocates are well versed in all aspects of this process. How we can assist If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with us Alternatively, you can email us at [email protected] – or call us on 0333 009 6275
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Facilitating Tax Evasion8/3/2019 HMRC is reported to be investigating alleged violations of a new criminal offence, part of the crackdown on money laundering, for the first time.
A freedom of information request made by law firm Greenberg Taurig revealed there are five current criminal investigations. The Criminal Finances Act 2017 introduced the new offence of failing to prevent the facilitation of UK tax evasion. The aim of the government was for relevant bodies to be held criminally liable where they fail to prevent those who act for, or on their behalf, from criminally facilitating tax evasion. Fraud Lawyers What is the actual offence? The offence is committed where a relevant body fails to prevent an associated person criminally facilitating the evasion of a tax. Previously in order to attribute criminal liability to a relevant body, you would have to show that senior members of that body were aware and involved, which was much harder. Tax evasion is defined as an offence amounting to a cheat of the public revenue or any offence consisting of being knowingly concerned in or taking steps with a view to the fraudulent evasion of tax. The offence is only committed where a UK tax evasion offence has been committed if a tax-payer is non-compliant or engaged in avoidance falling short of evasion the offence is not committed. Facilitation of tax evasion compromises being knowingly concerned in, or taking steps with a view to, the tax evasion of another, as well as aiding and abetting another person’s offence of tax evasion. It is not a criminal offence if an associated person inadvertently or negligently facilitates another’s tax evasion. The facilitation has to be criminal. The associated person has to commit the offence in the capacity of a person associated with the relevant body. So, if an employee criminally facilitates tax evasion in the course of their private life, they commit an offence but not this one. Where a tax evasion offence has been committed, and a person acting in the capacity of a person associated with the relevant body has committed a tax evasion facilitation offence, the relevant body will be guilty of the offence. It is a defence for the relevant body to have in place reasonable prevention procedures, those designed to prevent persons associated with it from committing facilitation offences. This could include regular staff training, contractual terms, compliance monitoring and clear reporting procedures. It is also a defence if it is not reasonable to expect the relevant body to have such procedures. What is the penalty? The offence is punishable by way of an unlimited fine and can be dealt with in the Magistrates Court or the Crown Court. There will of course be significant reputational damage to the company and those in charge. In their 2018 business plan, HMRC set out their target of 100 investigations per year. The fact that there are only five currently outstanding may be a surprise in the context of their stated intention or may mean that more investigations are imminent. How we can assist If you are concerned for yourself or your company, it is important to seek early advice – our criminal law experts are well placed to guide you through this regulatory minefield. If you would like to discuss any aspect of your case, please contact Ashmans Solicitors 03330096275. Alternatively email us [email protected] Dewsbury Solicitors |