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August 2023
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The Voyeurism (Offences) (No 2) Bill completed its parliamentary journey on 15th January 2019 and will shortly receive Royal Assent. As the Act will create new criminal offences, the usual convention is that at least two months will pass before the offence comes in to force.
Why was this law passed? This new law deals with 'upskirting', which is: '...the practice of taking a photograph up a person’s skirt or clothes without their consent.' Parliament was told that: "The law in England and Wales does not contain a specific criminal offence for upskirting, and the practice is currently prosecuted under one of two offences: outraging public decency (OPD) or voyeurism. OPD requires that an offence is: “lewd, obscene and disgusting to such an extent as to outrage minimum standards of decency”; two or more persons (excluding the perpetrator) must be present during the act or display, whether or not they are aware of the act or display or are outraged by it; and it must occur in a public place. Criminal Law Alternatively, the voyeurism offence, contained in section 67 of the Sexual Offences Act 2003, stipulates that a person commits an offence where, for the purposes of sexual gratification he/she observes, operates equipment with the intention of enabling another person to observe or records a person doing a private act, knowing the person does not consent. The offence also covers installing equipment to enable either themselves, or another person, to commit an offence of voyeurism." Concerns have been expressed that these laws are inadequate in response to upskirting due to the legal requirements necessary to bring the action within the scope of one of the 2 possible offences. Further, as neither of the two options is a sexual offence, any offender will avoid notification requirements (commonly referred to as being put on the sex offenders register). So, what will change? A new section 67A will be inserted into the Sexual Offences Act 2003. New section 67A subsection 1 would mean that a person (A) commits an offence if they operate equipment beneath the clothing of another person (B) to allow either themselves or another person (C) to observe person B’s genitals or buttocks or the underwear covering them, in circumstances in which they would otherwise not be visible. Criminal Solicitors Leeds Subsection 2 mirrors the provisions of subsection 1 and would mean that a person committed an offence where a person (A) records an image beneath the clothing of another person (B) which is of B’s genitals or buttocks, or the underwear covering B’s genitals or buttocks, in circumstances where the genitals, buttocks or underwear would otherwise not be visible. For both offences person A would operate equipment or record an image without B’s consent and without reasonably believing that B consented. In addition, under subsection 3 the purpose of person A in operating equipment (subsection 1) or recording an image (subsection 2) must be: • obtaining sexual gratification (whether for A or C); • humiliating, alarming or distressing B. The new offences would be triable either way. The maximum sentence following summary conviction (in a magistrate’s court) would be six months’ imprisonment, or a fine, or both. The maximum sentence following conviction on indictment (at the crown court) would be two years’ imprisonment. Notification Requirements The new Act will also allow that in certain circumstances offenders could be placed on the sex offenders register. These circumstances are: • For offenders aged over 18-years old: the offence was committed for sexual gratification and either the victim was under 18, or the offender has been sentenced to imprisonment; or detained in hospital; or made the subject of a community sentence of at least twelve months. • For offenders aged under 18-years old: the offence was committed for sexual gratification and the offender is or has been sentenced to imprisonment for at least twelve months. How can we help? This is only a general overview of the law. For in-depth advice on any criminal law issue, call Ashmans Solicitors 03330096275 . Alternatively email us [email protected]
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Community Protection Notices9/30/2019 Community Protection Notices (CPNs) are currently attracting a lot of attention from the legal community, and we have many concerns concerning the way in which they are presently being used.
In a recent case (Stannard v The Crown Prosecution Service [2019] EWHC 84 (Admin)) a CPN in the following terms was challenged: "The notice now requires that you: 1 – are not to enter the area of Reading Town Centre as defined by the map overleaf unless there is a prearranged appointment with a court or probation worker. 2 – are to give notice of a prearranged appointment to Thames Valley Police by calling '101' at least 24 hours prior to the relevant time. 3 – are not to attend within 100m of any McDonald's restaurant in Reading. 4 – are not to be in a group of more than 3 individuals including yourself." The Appellant submitted at trial that there was no case for him to answer on the alleged breach because the CPN included requirements that were unreasonably wide – in the sense that they were neither necessary nor proportionate to address the risk posed by the Appellant – and it was consequently unlawfully imposed. As a result, the CPN was invalid and could not be enforced against him. Criminal Solicitors Leeds The District Judge rejected that submission on the basis that it was not for her to consider the validity or otherwise of the CPN, and any argument relating to its invalidity could and should have been raised by way of an appeal against the CPN. The trial continued. The judge found the breaches established on the evidence, and the Appellant was convicted. The central issue raised on this appeal was whether, in the case of a prosecution for breach of a CPN, it is open to a defendant to argue by way of defence that the CPN was and is invalid. The court ruled that '...the District Judge was therefore right to conclude that the CPN was binding on (and enforceable against) the Appellant unless and until it was varied or discharged: accordingly, she could not look behind it and did not have jurisdiction to hear the Appellant's arguments going to the validity of the CPN.' However, the court went much further and issued the following guidance which we believe has the potential to be extremely helpful: "Of course, if the CPN remains as it is, and if the Appellant is again prosecuted for breach, he will not be able to raise the argument he has raised before District Judge Toms and us by way of defence at trial. However, we make clear that, the failure of this appeal does not mean that the Appellant is fixed with the CPN in its current form for evermore. If he has concerns about the scope of the CPN or its indeterminate nature, he should raise them with the Thames Valley Police and seek a variation of the CPN. If they wrongly refuse to vary, judicial review will be available. More generally, we emphasise that those who are authorised under section 43(1) of the 2014 Act should recognise that they have power not only to issue, but also to vary and discharge a CPN in appropriate circumstances. It is not for this court to tell authorised persons how to go about their decision-making, but we would think it a minimum that such persons should operate a system for receiving and adjudicating requests for variation or discharge of CPNs; and that relevant information should briefly be given with any CPN about how to seek a variation or discharge (e.g. on a change of circumstance), in addition to information required by statute about a statutory appeal. CPNs constitute a significant interference with an individual's freedom; they must be clear in their terms and proportionate in their effect. We make two final comments. First, we consider it would be best practice and consistent with legal certainty for any CPN to be limited in time, with that term clearly stated in the CPN. Secondly and more generally, we emphasise the need for authorised persons prior to issuing a CPN to consider with care the prohibitions and restrictions imposed to ensure that they go no further than is necessary and proportionate to address the behaviour which has led to the CPN being made." Ashmans Solicitors Notable Case How can we help? We can assist you with all queries relating to Community Protection Notices. This is only a general overview of the law. For in-depth advice, call Ashmans Solicitors 03330096275 or Alternatively email us [email protected]
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The government has conducted a review of the process for prisoners to be released on temporary licence (ROTL); the drive behind the changes being the rehabilitation of offenders.
Criminal Lawyers Leeds Research has shown that working in the community prior to release significantly reduces the likelihood of re-offending, and ex-offenders in employment are up to nine percentage points less likely to commit further crime. Re-offending currently costs the country £15 billion per year. Previous changes focussed on support for ex-offenders when they leave prison with changes to the probation service and a move away from short, ineffective, prison sentences and to allow more effective treatment of issues such as addiction and mental health problems. Now a number of changes have been made to the previous policy on ROTL, for adults, to assist in preparation for resettlement in the community once released. The changes include:
The use of ROTL was restricted in 2013 following a murder committed by a prisoner on day release but the new changes mark a shift in attitude. Allowing prisoners to spend time in the community is a vital part of reintegration and 99% of all temporary releases are completed successfully. How we can assist If you need specialist advice, then get in touch with Ashmans Solicitors 03330096275 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. Alternatively email us [email protected] On The Balance Of Probabilities
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The Cut-Throat Defence9/20/2019 A cut-throat defence is where one defendant gives evidence that is damaging to a co-defendant's case, sometimes going as far as directly accusing the other person of the crime, while typically seeking to exonerate themselves.
Criminal Solicitors Leeds Such evidence may be given directly by a defendant (or more than one in some cases) as a positive aspect of their case or elicited by prosecution questioning. Either way, it can make for an uncomfortable moment during the case when one defendant is pitted against another, particularly if issues of bad character arise because of it. The conventional view is that cut-throat defences rarely end well, although in reality, that is a generalisation too far, and the outcome will always depend on a multitude of factors. Where a cut-throat defence is anticipated or encountered, thought will be given to the issue of severance - or separate trials. These applications are not always successful in practice, as explained in Varley [1982] 2 All ER 519: 'The other ground put forward was that the judge wrongly exercised his discretion by refusing to order separate trials. We recognise that there may well be occasions where there has been a successful application to cross-examine a co-defendant on his convictions and the trial judge, in his duty to ensure a fair trial, may properly exercise a discretion to order separate trials. We have in mind the situation whether the effect of such cross-examination is such as to create such undue prejudice that a fair trial is impossible. But that is not this case. The truth of the matter is that this was a case where two experienced criminals metaphorically cut each other's throats in the course of their respective defences. If separate trials had been ordered, one or other or both might have succeeded in preventing a just result.' While a separate trial may not seem a likely outcome, some lawyers mistake the case law to such an extent that they rule out the argument completely; we feel that to be an inadequate approach and ensure that scrutiny is applied in all instances (see cases such as R v O'Boyle (1991) 92 Cr App R 202). Relevant arguments will centre around: 1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against the other accused to be jointly tried with him, and 2. Where the evidence against those other accused contains material highly prejudicial to the applicant though not admissible against him, and 3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material. At the opposite end of the spectrum, it may be the case that you have to run a cut-throat defence and consideration will have to be given to the consequences, both positive and negative, of doing so. Criminal litigation is increasingly complex, and you must instruct a legal team able to work through all the issues that might arise and provide a strategy for dealing with them. The emphasis is always on proactive rather than merely reactive trial strategies. How we can assist If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Ashmans Solicitors 03330096275 and let us help. We can advise on all aspects of your case. Alternatively email us [email protected] Length Of Sentence
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A District Judge sitting at Westminster Magistrates' Court last month authorised that a summons be issued against the prominent conservative member of parliament, Boris Johnson.
The allegations relate to alleged conduct during the Brexit referendum campaign and in particular the £350m per week for the NHS slogan that adorned the side of campaign buses. Unless other steps are taken to the stop this prosecution, Johnson will have to appear in court to answer these charges and face trial at the crown court. So what? The unusual aspect of this case is that this is a private prosecution crowdfunded by individuals who support the prosecution. Is that unusual? In England and Wales, the vast majority of prosecutions are undertaken by the Crown Prosecution Service. Also, there are also a large number of other public bodies that regularly prosecute cases, generally of a specialist nature, before the courts, such as the Environment Agency, Serious Fraud Office, Local authorities, Civil Aviation Authority etc. There are also very few well-known organisations that regularly privately prosecute cases, most notably the RSPCA in respect to allegations of animal cruelty. But private individuals prosecuting cases are relatively rare. Are private prosecutions always allowed? The Supreme Court has reiterated quite recently that private citizens have a constitutional right to prosecute alleged crimes before the courts. Some companies and individuals’ resort to private prosecution when they feel that the State has failed to act. There are many safeguards to prevent vexatious prosecutions, such as:
Doing a Boris Update The High Court has blocked a private prosecution of Tory leadership frontrunner Boris Johnson This has now completely quashed all charges against him The man who brought a private prosecution against prime minister hopeful Boris Johnson has told Legal Cheek he faces an uncertain financial future after racking up debts of around £200,000. Despite crowdfunding over £500,000 over three years to bring the case, Marcus Ball has told this website in an exclusive interview that “in terms of the overall balance sheet, money owed and money left, we’re in the negatives.” When asked if he’s in debt, the director of Brexit Justice Limited responded: “Oh, massive debt, of approximately about £200,000, roundabout.” Source How we can assist If you need specialist advice, then get in touch with Ashmans Solicitors 03330096275 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. Alternatively email us [email protected]
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Today the Sentencing Council published new guidelines covering arson and criminal damage of all kinds, as well as threats to destroy property. There were existing guidelines, but they were thought to be very limited and only covered the Magistrates Court, there were no guidelines for the Crown Court, which deals with the more serious offences.
Sentencing guidelines are designed to ensure that the court passes an appropriate sentence and does so consistently across all of these extremely varied cases. A judge must follow sentencing guidelines unless it is not in the interests of justice to do so. The new guidelines will replace those that existed in the Magistrates Court and extend to the Crown Court, covering all offenders aged over eighteen. The Sentencing Council has said that the guidelines will make sure courts consider: • The full impact of arson or criminal damage such as vandalism on national heritage assets including listed buildings, historic objects or unique parts of national heritage and history. • The economic or social impact of damaging public amenities and services such as a fire at a school or community centre, or criminal damage at a train station, which can adversely affect local communities or cause economic hardship to neighbouring houses or businesses. • The effect on communities when an area’s emergency services or resources are diverted to deal with an incident of criminal activity. The guidelines provide starting points, and category ranges for offences of arson, arson and criminal damage (intending that, or being reckless as to whether life is endangered), criminal damage over £5,000, criminal damage under £5,000, racially or religiously aggravated criminal damage of both values, and threats to destroy or damage property. The guidelines require a sentencer to determine the ‘culpability’, taking into account things like planning, intended amount of damage, and motive, and ‘harm’, taking into account physical or psychological harm caused, the value of the damage actually done, and any subsequent loss the damage causes. Racially and religiously aggravated offences are given an ‘uplift’ for the level of aggravation, making for more severe punishment and possibly lifting an offence above the custody threshold. To take an example, criminal damage under £5,000 with elements of significant planning and causing a high amount of damage and distress would lead to a starting point of a high-level community order with a range from a medium-level community order to three months custody. If that were a racially aggravated offence, where the racial motive was a significant part of the offence, that would likely increase the starting point to a custodial sentence. Commenting on the new guidelines, John Bache JP, National Chair of the Magistrates Association, said: ‘We are very pleased that the new guidelines for Arson and Criminal Damage have been published, and will be available for magistrates from 1st October. These new guidelines will be very helpful to magistrates dealing with these important cases and clearly set out the relevant factors in determining harm, beyond a focus on physical damage. It is, however, right that if an offender has mental health conditions or learning disabilities then courts must obtain assessments to fully understand whether this impacts on their culpability, and this guideline will help to ensure that this happens.’ How we can assist If you need specialist advice, then get in touch with Ashmans Solicitors. Leeds Criminal Law Solicitors Tel: 03330096275 Email: [email protected]
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New Anti-Terrorism Powers9/3/2019 The Counter-Terrorism and Border Security Act 2019 has completed its parliamentary journey and will, in the main, come in to effect over the next few months. The Home Secretary Sajid Javid claims that the Act: '...ensures sentencing for certain terrorism offences can properly reflect the severity of the crimes, as well as preventing re-offending and disrupting terrorist activity more rapidly.'
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In criminal law, we use two different standards of proof, the most well known is 'beyond reasonable doubt' (although these days expressed as 'so that you are sure'), and the balance of probabilities. The latter standard of proof gets less attention but is nonetheless of critical importance in criminal cases. Whilst we hear the term bandied about in courts up and down the land on a daily basis, we hardly ever hear lawyers articulating its meaning to the court, which may well be a serious error of judgement if a magistrates' court is hearing the case. In Miller v Minister of Pensions [1947] 2 All ER 372 (a civil case) Lord Denning expressed the legal test in this way [374A-B]: '...the case must be decided according to the preponderance of probability. If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determine conclusion one way or the other, then the man must be given the benefit of the doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in a civil case. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.' In Pope v General Dental Council [2015] EWHC 278 (Admin) the following assistance can be derived: 'In a civil case, the burden of proof is fixed at the beginning of the trial by the state of the pleadings and remains there never shifting. Similarly, in criminal cases, the burden of proof lies on the same party (in practice usually, but not always, the prosecution) throughout. The general practical impact of this is that at no stage of the proceedings is the fact finder entitled to say that the evidence on any given issue has accreted to the extent that the persuasive burden of proof has, as a result, been effectively shifted from one party onto the other party. This point was authoritatively and emphatically made by Viscount Sankey L.C. in Woolmington [1935] AC 462 at page 481: 'If at any period of a trial it was permissible for the judge to rule that the prosecution had established its case and that the onus was shifted on the prisoner to prove that he was not guilty and that unless he discharged that onus the prosecution was entitled to succeed, it would be enabling the judge in such a case to say that the jury must in law find the prisoner guilty and so make the judge decide the case and not the jury, which is not the common law. It would be an entirely different case from those exceptional instances of special verdicts where a judge asks the jury to find certain facts and directs them that on such facts the prosecution is entitled to succeed. Indeed, a consideration of such special verdicts shows that it is not till the end of the evidence that a verdict can properly be found and that at the end of the evidence it is not for the prisoner to establish his innocence, but for the prosecution to establish his guilt. Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence.' The importance of applying the burden of proof on any issue by taking into account all of the evidence at the end of the case was also stressed by Viscount Sankey in Woolmington at page 483 deploying a metaphor the vividness of which has been long since been rewarded with the status of cliché: "Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt … If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained." And, with respect specifically to the facts of that case in which the charge was one of murder: "If the jury are either satisfied with his explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted." The time at which the burden of proof must be applied is, therefore, at the end of the case without either attenuation or reversal as a result of the ebb and tide of evidential fortunes in the hearing which had preceded it. The evidence in favour of one party is put in one pan of the scales and that of the other in the other pan. As the case progresses, one pan may rise as the other falls and vice versa. When the evidence has concluded, the scales will have tipped in one direction or another or will have ended up evenly balanced. The fact that one party bears the burden of proof means that he will lose not only if the pan has fallen in favour of the other party but also if the scales end up evenly balanced. Criminal Solicitors Leeds The application of the burden of proof does not, however, involve putting some unspecified weight into the pan of the party who does not bear the burden of proof before any evidence is called. The burden of proof and the standard of proof comprise the criteria which are to be applied to all of the evidence after it is complete in order to determine how any given issue is to be resolved. As such, the burden of proof has no "weight" either in the scale analogy or, literally, in the context of a contested issue as a piece of evidence in itself. To say that the burden remains on one party throughout is merely to make the point that, however imbalanced the scales may appear to be at any given stage in the proceedings, the test to be applied remains unchanged throughout.' So, Not So Simple After All? As you can see, the issue of burdens and standards of proof has exercised the courts on a great many occasions in the past (there are at least another dozen or so important judgments dealing with these issues). We understand that these issues lie at the heart of almost all criminal cases and leave nothing to chance. It is essential that all tribunals deciding cases correctly understand the underlying framework of criminal evidence. How we can assist If you need specialist advice, then get in touch with Ashmans Solicitors 03330096275 and let us help, we deal with all manner criminal offences on a daily basis and have the expertise to get you the best result possible. Alternatively email us [email protected] Categories |