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Giving False Information to the Police12/30/2019 It is an offence to give false information to the police.
Section 5(2) of the Criminal Law Act 1967 provides: 'Where a person causes any wasteful employment of the police by knowingly making to any person a false report tending to show that an offence has been committed, or to give rise to apprehension for the safety of any persons or property, or tending to show that he has information material to any police inquiry [commits an offence].' Criminal defence Solicitors Leeds This offence is punishable with up to 6 months imprisonment. Before a person can be prosecuted the consent of the Director of Public Prosecutions (DPP) is required. In practical terms, this means that the police cannot charge the offence without the prior permission of the Crown Prosecution Service (as Crown Prosecutors can consent on the DPPs behalf). That, however, is not necessarily the end of the story. City Of London Solicitors There is a significant overlap between this offence and the offence of perverting the course of justice, which may also be committed in some instances where a false report to the police is made. This much more serious offence, very often resulting in a lengthy term of imprisonment, may be considered where the intent behind the initial report was more considered and the consequences of the false report have gone beyond a mere waste of police resources, so for example where a large scale police operation has been put into place, or a person has been arrested as a result of the false report. If you have made a false report to the police, it is essential to get early advice, preferably before the police discover the truth. The offence of perverting the course of justice is particularly complex in law. Early admission may, in some cases be the best policy, but much will depend on the exact circumstances. The important thing is to explore all available options as soon as possible so that we can best assist you. 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] Online Abuse
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The festive season is a time to kick back and enjoy a little rest and recuperation before 2020 hits us all like a brick and life carries on as usual.
While we will be hoping to enjoy some well-earned rest, our team remains on standby to act when our services are needed. This firm participates in the duty solicitor scheme, this is entirely independent of the police and is simply a rota which many criminal firms join to ensure 24/7 cover for those who find themselves arrested or before a court. Also, we have people on call 24/7 every day of the year (yes, including Christmas Day) to assist new and existing clients who find themselves in need of our services. Anyone charged and held in custody on Christmas Eve will not appear before a court until Boxing Day, it is therefore essential that if you are arrested you ask for us to represent you at the outset, this ensures the very best chance of securing you bail so that you can return to your family as soon as possible. It is often tempting to think, and on occasion, it may even be suggested to you, that doing without a solicitor will speed your exit from a police station. Nothing could be further from the truth. We are ready and able to act immediately, having a solicitor doesn't slow things down, it speeds things up, considerably. Everyone detained in police custody facing a criminal investigation is entitled to free legal representation - it would be foolish not to take advantage of this important legal protection. If you have been arrested ask the custody staff to contact us on your behalf, we are only a phone call away. If you are concerned for the welfare of a loved one who has been arrested then call the number below, we can quickly ascertain what is going on. So, while we hope that we all have a break over the next few days if things do go wrong, we are here to put them right. Don't hesitate, call us. Dewsbury Solicitors Sheffield Criminal Solicitors Fleet St Solicitors Leeds Solicitors Huddersfield Criminal Solicitors London Criminal Solicitors How we can assist If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Ashmans Solicitors and let us help. We can advise on all aspects of your case. Alternatively email us [email protected] Appeals FromThe Grave
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Investigating and Prosecuting Rape Cases12/19/2019 Her Majesty's Crown Prosecution Service Inspectorate has published a new report in relation to the investigation and prosecution of rape cases. The significant findings are:
From the perspective of a firm that represents persons accused of having committed sexual offences, a number of the report findings are quite alarming. If you have been accused or being prosecuted then speak with our rape solicitors London. Criminal Law Solicitor Leeds For example: "[In a] sample of 250 cases the police were generally not very good at accurately identifying the strengths and weaknesses of the case they were submitting, only doing so fully in 49% of charged or NFA cases, and partially in another 38.5% of those cases. This left 12.6% of cases where the analysis was very weak or missing." This has significant implications for defendants being wrongly charged with offences due to inadequate evidence being provided to prosecutors. "Relevant unused material, or an adequate report on it, was supplied in 81.3% of relevant charged or NFA cases. The standard file submission for RASSO cases does not have to include unused material schedules, except where local agreement mandates them. About a third of police submissions in charged or NFA cases included schedules, but only 34.9% of them were satisfactory. Missing items from a schedule was the most common error, but listing things on the wrong schedule and poor descriptions also featured, and interviewees expressed concerns that officers did not understand their duties or the concept of relevance in relation to unused material. If the schedules or summaries of unused material are deficient, either they are sent back to the police, causing delay, or the lawyer proceeds on the basis of incomplete or inaccurate information, which carries a risk that relevant undermining material is overlooked." History demonstrates that unused material often unlocks the truth in cases; it is a matter of grave concern that the police are still not able to properly address the fundamentals of investigative work. "Of the 250 cases, there were five (2%) which featured a wholly unreasonable decision, so the Code was applied correctly in 98% of cases." Two per cent sounds a low number, but in this small sample alone, that is five wrong decisions. The report suggests that two people were wrongly charged as a result. The report authors demand a better response from police and prosecutors, observing: "The extent of the work that is now being carried out on a rape or serious sexual offences investigation, and the quantity of material that now needs to be reviewed pre-charge, has led to much more work on each case. While that is work that ought to have been done in any event, it is apparent that it was not happening in all cases, and certainly not at the right stage. There is a need to address that, while also recognising that it is important to devote time and care to ensuring that the right cases proceed on the right evidence and with the right disclosure made to the defence. If this takes more time, as long as the time is not wasted, then it is inevitable and right that it should do so." What Can We Do? In many respects, this report simply confirms what we already know, that the investigative and prosecution process is lacking in many respects. We will continue to robustly monitor these and other cases to ensure a fair outcome for those we represent. Dewsbury Solicitors How we can assist do you need an experienced rape defence solicitor 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] or contact our rape solicitors More Legal News
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Passport Offences12/19/2019 Immigration is a very political issue at the present time, and the hurdles facing those wishing to settle in the UK are getting harder to surmount, tempting some people to buy false passports to try and secure entry and in some cases gainful employment.
Section 4 of the Identity Documents Act 2010 makes it an offence to possess a false identity document with improper intention. The offence is punishable with up to 10 years imprisonment. A number of cases make clear that those caught face the prospect of a custodial sentence, making it all the more important for us to prepare robust mitigation. Criminal Solicitors Leeds Ovieriakhi [2009] EWCA Crim 452 - “Wherever the case is on the spectrum, a custodial sentence is likely, save in exceptional circumstances…In cases in which a false passport is to be used for the purpose of securing entry into the United Kingdom, the guidance contained in Kolawole applies. Where, however, a false passport is used to obtain work or a bank account, its use does not enable the offender to obtain entry to the United Kingdom and for that reason it may properly be treated less severely than the use of a passport which does, or may, have that effect. What the use of a passport to obtain work does, however, do is to facilitate the offender remaining in the United Kingdom in breach of immigration controls. For that reason a custodial sentence is usually required. But it can justifiably be less, particularly if the offender is of good character and has done no more than use or try to use it to seek employment in order to maintain himself/herself or his/her family.” Jammeh [2014] EWCA Crim 549 – “The use of a passport to obtain work is less serious than the use of a passport for the purposes of securing entry to the UK. However, what the use of a passport to obtain work does do is to facilitate the offender remaining in the UK in breach of immigration controls. In the present case the appellant admits the use of a passport on two occasions. In the circumstances we consider that a sentence of eight months imprisonment is appropriate.” Buriticia-Castrillon and Omotade [2008] EWCA Crim 1972 - “This court has repeatedly emphasised that the use of false passports must be treated seriously, as in Kolawole, even where one passport is used, on a plea of guilty, by a person of good character in relation to gaining entry. That is because the use of false passports to obtain entry to this country disrupts the fabric of immigration control or has the potential to do so. There is, as the authorities show, a lower level of gravity involving the use of a false passport in this country to obtain a job or to obtain benefit — in other words, to obtain something to which the user of the passport is not entitled by means of a forged passport.” Dewsbury Solicitors Who is the victim? In all cases, we are acutely aware that our client may, in fact, be a victim of trafficking and entitled to protections offered by s45 of the Modern Slavery Act 2015. We pride ourselves on thoroughly investigating the background circumstances to ensure that no defence or piece of mitigation is missed. It is a crucial feature of our case preparation to ensure that the criminal justice process does not become a hostile environment for those seeking refuge. 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] Computer Hacking
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Computer Hacking12/12/2019 Hacking has been in the news a great deal in the last couple of years, for example, the 2016 US Presidential Elections, the extradition case of Lauri Love and the hacking of user accounts of various large companies in order to steal personal information. At the other end of the spectrum we see cases of police officers unlawfully accessing police computers (often charged as misconduct in public office). What is hacking? Put simply hacking is unauthorised access. The law (Computer Misuse Act 1990) says that hacking is: - causing a computer to perform any function with intent to secure access to any program or data held in any computer when; - that access is unauthorised; and - the person knows at the time when he causes the computer to function that that is the case. Solicitors in Dewsbury Why would someone hack a computer? Some people like to test their abilities, to see if they can get through high-security measures. Others may want access to be able to commit further criminal offences, the information obtained could be used for fraud, blackmail or other similar offences. It is not necessary for a person to intend to use any of the information gained. The simple offence is the intent to gain access to information or data to which you would not usually have access, although see below for other offences. Are there other offences? As well as the simple offence set out above (unauthorised access), there are further offences of unauthorised access with intent to commit or facilitate further offences; unauthorised acts with intent to impair the operation of the computer; and unauthorised acts causing or risking serious damage. What are the penalties? These offences can be dealt with at the Magistrates Court or the Crown Court depending on the seriousness. The maximum penalty at the Crown Court is two years imprisonment and/or a fine for the simple offence of unauthorised access. Where the offence is committed with intent to commit further offences, the maximum sentence becomes five years, and if committed with intent to impair operation the maximum sentence is ten years. By way of examples, a man who gained access to websites and deleted data to cause inconvenience as revenge for his dismissal was given nine months’ imprisonment. A man accessed the Welsh Assembly computer system on twenty occasions over a period of a week, reading a number of restricted, sensitive emails, was given four months’ imprisonment. In another case 2 years imprisonment was imposed for introducing a number of viruses to the internet, causing unknown damage. In many cases the sentences are much more severe. How can we help? It is important that if you are under suspicion of committing an offence that you speak to a specialist before talking to the police. We can help 24 hours a day, please contact Ashmans Solicitors 03330096275 to discuss any aspect of your case. Alternatively email us [email protected] Acid Attacks New Laws
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Happy Birthday to the Human Rights Act12/9/2019 The Human Rights Act is 21 years old this year. Its name is often used in vain, “it’s against my human rights!” or blamed for something that probably isn’t to do with the Act at all. The Act sets out the fundamental rights and freedoms to which everyone in the UK is entitled.
Where did the law come from? The legislation was passed in 1998 to incorporate into UK law the European Convention on Human Rights. Before that, you may have had to go to the European Court of Human Rights in Strasbourg rather than a British court if you thought your human rights had been breached. Dewsbury Solicitors What rights are protected? A wide range of rights are protected, these include: • Right to life • Freedom from torture • Freedom from slavery • Right to liberty and security • Right to a fair trial, no punishment without law • Respect for private and family life • Freedom of thought, belief and religion • Freedom of expression • Freedom of assembly and association • Right to marry and start a family • Protection from discrimination How is this relevant to criminal law? The Act can have extensive application to criminal law; many underlying principles are supported by the protected rights. Most important is the right to a fair trial, and that there is no punishment without law. An accused person is always innocent until proven guilty and has the right to hear the evidence against them. Whilst some of these rights were of course already an integral part of English criminal law, the European jurisprudence has played an important part in developing this area of law. Other protected rights can come into play, for example, freedom of speech and of assembly may become relevant in some public order offences. We have seen this utilised very well in a recent case involving protests in relation to fracking. Protection from discrimination – this is a right protected by offences that become more serious if racially aggravated or persons of a protected characteristic are targeted by an offender. This can have an impact on the offence charged and also in sentencing. How else is the Act used? The legislation is there to challenge injustices, Hillsborough is probably one of the better-known examples where the Act was used by the families to secure an inquest. It has been extensively argued in diverse cases such as seeking confirmation over questions on assisting suicide and euthanasia, keeping elderly couples together in nursing homes, and preventing extradition to countries that have the death penalty. It is also likely to be used in respect of Windrush and Grenfell Tower inquiries. It may well also be raised in current arguments as to whether the power of stop and search should be expanded as there are real concerns certain communities may be unfairly targeted. How can we help? Our lawyers are dedicated to securing justice and we achieve this by using a very wide range of laws. We can advise you of the impact of this law in your particular circumstances, if you would like to discuss any aspect of your case, please contact Ashmans Solicitors 03330096275 Alternatively email us [email protected] firearms sentencing
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Animals - Disqualification from Keeping12/9/2019 Section 34 of the Animal Welfare Act 2006 states that a court may make an order disqualifying a defendant from keeping animals.
When can the order be made? The defendant must have been convicted of a specified offence under the Act (section 4, 5, 6(1), 6(2), 7, 8 or 9). The purpose of the order is not to punish the offender; The sole purpose is to protect the future welfare of other animals (Barker v RSPCA [2018] EWHC 880 (Admin)). When considering the making of a disqualification order regard can properly be had to previous convictions (Ward v RSPCA [2010] EWHC 347 (Admin)). Criminal Solicitors Leeds What is the scope of the order? Disqualification can include one or more of the following parts: Part 1 (a) from owning animals, (b) from keeping animals, (c) from participating in the keeping of animals, and (d) from being party to an arrangement under which he is entitled to control or influence the way in which animals are kept. Part 2 (a) disqualifies a person from dealing in animals. Part 3 Disqualifies a person - (a) from transporting animals, and (b) from arranging for the transport of animals. Disqualification may be imposed in relation to animals generally, or in relation to animals of one or more kinds. In R (RSPCA) v Guildford Crown Court (2012) the court held that whilst ordinarily the exclusions contained in [Part 1] must be included as part of a disqualification order, it may be appropriate not to do so if the defendant’s human rights would be infringed. It is not permissible when making a disqualification order to allow for the keeping of a maximum number of animals (R (RSPCA) v Chester Crown Court [2006] EWHC 1273 (Admin), a case based on section 1(1) Protection of Animals (Amendment) Act 1954, which was couched in the same terms as section 34 of the 2006 Act). This case also emphasises an important point in relation to the making of a discharge as a way of avoiding disqualification in an appropriate case. Can an order be avoided? We realise that orders of this type can cause significant distress and upset; it is vital that all the safeguards in case law and legislation are followed before such orders are made. If you face proceedings for an offence under the 2006 Act or have been made subject to an order of this type and wish to discuss whether it can be challenged, get in touch with one of our specialist team. 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] More legal News Dewsbury Solicitors
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The Morning After the Night Before12/5/2019 When people think about drink/drug driving, it is often based on a narrative that involves a man, leaving a pub late at night, driving erratically and being stopped by the police. This scenario is sometimes the backdrop to an arrest for drink or drug driving, but more often, the story is quite different.
The morning after the night before begins with a headache, followed by groans as the body and mind adjusts to the horrible thought that this is not a weekend, and work beckons. A quick shower revives the senses and off to work you go. Traffic is heavy as usual, drivers as intolerant as ever, and the rain contributes only to a sour mood amongst drivers. Then bang - a relatively minor shunt causing minimal damage, to really kick start the day! But it is often this kind of minor road traffic incident, causing road chaos and attracting the attention of the police that results in roadside testing for drink and drugs. The fact that you look great, feel fine, and are not responsible for the accident, will do nothing to mitigate the alcohol or drug levels in your body. Anyone who tells you that you can confidently predict alcohol or drug levels the morning-after is not telling the truth. What happens next makes the earlier headache pale into insignificance. An arrest, charge and court appearance resulting in a minimum period of disqualification. Will you keep your job? What will your partner say? The safest message remains 'none for the road'; in some cases, there are legal defences available, and we can discuss these with you. When a legal defence is not possible, we work hard to mitigate the sentence and get your life back on track. Your local police force will now have in place its Christmas and New Year drink and drug driving campaign, roadside testing will increase, and officers will be extra vigilant. We hope that you do not need our services over the festive period, but if you so please be assured that we are here, on your side, 24 hours a day. Motoring Defence Lawyers How we can assist If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with When people think about drink/drug driving, it is often based on a narrative that involves a man, leaving a pub late at night, driving erratically and being stopped by the police. This scenario is sometimes the backdrop to an arrest for drink or drug driving, but more often, the story is quite different. The morning after the night before begins with a headache, followed by groans as the body and mind adjusts to the horrible thought that this is not a weekend, and work beckons. A quick shower revives the senses and off to work you go. Traffic is heavy as usual, drivers as intolerant as ever, and the rain contributes only to a sour mood amongst drivers. Then bang - a relatively minor shunt causing minimal damage, to really kick start the day! But it is often this kind of minor road traffic incident, causing road chaos and attracting the attention of the police that results in roadside testing for drink and drugs. The fact that you look great, feel fine, and are not responsible for the accident, will do nothing to mitigate the alcohol or drug levels in your body. Anyone who tells you that you can confidently predict alcohol or drug levels the morning-after is not telling the truth. What happens next makes the earlier headache pale into insignificance. An arrest, charge and court appearance resulting in a minimum period of disqualification. Will you keep your job? What will your partner say? The safest message remains 'none for the road'; in some cases, there are legal defences available, and we can discuss these with you. When a legal defence is not possible, we work hard to mitigate the sentence and get your life back on track. Your local police force will now have in place its Christmas and New Year drink and drug driving campaign, roadside testing will increase, and officers will be extra vigilant. We hope that you do not need our services over the festive period, but if you so please be assured that we are here, on your side, 24 hours a day. How we can assist If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with When people think about drink/drug driving, it is often based on a narrative that involves a man, leaving a pub late at night, driving erratically and being stopped by the police. This scenario is sometimes the backdrop to an arrest for drink or drug driving, but more often, the story is quite different. The morning after the night before begins with a headache, followed by groans as the body and mind adjusts to the horrible thought that this is not a weekend, and work beckons. A quick shower revives the senses and off to work you go. Traffic is heavy as usual, drivers as intolerant as ever, and the rain contributes only to a sour mood amongst drivers. Then bang - a relatively minor shunt causing minimal damage, to really kick start the day! But it is often this kind of minor road traffic incident, causing road chaos and attracting the attention of the police that results in roadside testing for drink and drugs. The fact that you look great, feel fine, and are not responsible for the accident, will do nothing to mitigate the alcohol or drug levels in your body. Anyone who tells you that you can confidently predict alcohol or drug levels the morning-after is not telling the truth. What happens next makes the earlier headache pale into insignificance. An arrest, charge and court appearance resulting in a minimum period of disqualification. Will you keep your job? What will your partner say? The safest message remains 'none for the road'; in some cases, there are legal defences available, and we can discuss these with you. When a legal defence is not possible, we work hard to mitigate the sentence and get your life back on track. Your local police force will now have in place its Christmas and New Year drink and drug driving campaign, roadside testing will increase, and officers will be extra vigilant. We hope that you do not need our services over the festive period, but if you so please be assured that we are here, on your side, 24 hours a day. How we can assist If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with When people think about drink/drug driving, it is often based on a narrative that involves a man, leaving a pub late at night, driving erratically and being stopped by the police. This scenario is sometimes the backdrop to an arrest for drink or drug driving, but more often, the story is quite different. The morning after the night before begins with a headache, followed by groans as the body and mind adjusts to the horrible thought that this is not a weekend, and work beckons. A quick shower revives the senses and off to work you go. Traffic is heavy as usual, drivers as intolerant as ever, and the rain contributes only to a sour mood amongst drivers. Then bang - a relatively minor shunt causing minimal damage, to really kick start the day! But it is often this kind of minor road traffic incident, causing road chaos and attracting the attention of the police that results in roadside testing for drink and drugs. The fact that you look great, feel fine, and are not responsible for the accident, will do nothing to mitigate the alcohol or drug levels in your body. Anyone who tells you that you can confidently predict alcohol or drug levels the morning-after is not telling the truth. What happens next makes the earlier headache pale into insignificance. An arrest, charge and court appearance resulting in a minimum period of disqualification. Will you keep your job? What will your partner say? The safest message remains 'none for the road'; in some cases, there are legal defences available, and we can discuss these with you. When a legal defence is not possible, we work hard to mitigate the sentence and get your life back on track. Your local police force will now have in place its Christmas and New Year drink and drug driving campaign, roadside testing will increase, and officers will be extra vigilant. We hope that you do not need our services over the festive period, but if you so please be assured that we are here, on your side, 24 hours a day. 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]
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In Chabloz v Crown Prosecution Service [2019] EWHC 3094 (Admin) the High Court dealt definitively with several highly technical legal challenges concerning Communications Act defences.
On 25 May 2018 at Westminster Magistrates’ Court, Alison Chabloz, was convicted of three offences under section 127(1)(a) and (b) of the Communications Act 2003. She appealed her convictions to Southwark Crown Court, but on 13 February 2019 her appeal was dismissed. She then appealed by way of judicial review. What were the charges? The first two charges against the applicant in the present case were that on or about 28 September 2016, contrary to section 127(1)(b), she had caused to be sent by means of a public electronic communications network, namely the internet, a message or matter that was grossly offensive, being a hyperlink on her blog to two performances of her antisemitic songs entitled “Nemo’s Antisemitic Universe” and “(((Survivors)))”. These songs had been performed by her four days earlier at a meeting of a right-wing organisation called the London Forum at the Grosvenor Hotel in London. The performances had been video-recorded and then uploaded onto YouTube. She had not been involved in the uploading, but she had a free account with wordpress.com and had been allocated a subdomain entitled “tellmemorelies.wordpress.com”, a blog which allowed her to publish and manage multimedia content. On this blog site the applicant informed those looking at the site that she had performed the songs, and pasted a hyperlink which connected with the YouTube site and allowed immediate streaming of the London Forum video of her performances. The third charge concerned section 127(1)(a). The applicant accepted that on 2 September 2017 she had uploaded the video of her performing another song called “I like the story as it is - SATIRE!” onto the YouTube website. This song was grossly offensive for the same reasons. Appeal points The claimant did not take issue that the songs were grossly offensive but submitted that the posting of a hyperlink was a neutral act which did not cause an offensive message to be sent. In respect of the third offence, she submitted that she had sent the video to a server in California, which was an inanimate object, so communication with it was not possible. What did the Court say? In relation to the hyperlink defence, it held: "It is possible to approach Issue 1 in three different ways and reach the same conclusion: that, on the facts of this case, the applicant was properly convicted under section 127(1)(b). The first is by reference to ordinary common sense: the applicant told those looking at her blog that she performed these songs and that her performances had been uploaded onto YouTube. To facilitate their access to those performances, she pasted onto her blog page the hyperlink to the YouTube video. That was not in any sense a neutral footnote or a passive reference to something unconnected to her, but instead a direct signpost to the performance of her own songs. She was endeavouring to widen the distribution of her own material. It was the applicant who set in train the sending process. She used the internet to put in place an interface between the two websites (the embedded deep link between her blog and YouTube) which ensured the conveyance of the contents of a video from one to the other. The software created a direct link to where the video was stored and enabled immediate access to it by the push of a button. As long as it remained on YouTube, it was accessible via the applicant’s blog. Moreover, the purpose of setting up the link was to cause the material to be sent. Without the applicant going onto the YouTube site, copying the hyperlink and pasting it onto her own wordpress.blog page, it would not have been possible for others to access the material from that location. The applicant put in place the process by which the video was sent, which is why it can be said that she caused the message to be sent. It is not tenable to argue, as Mr Davies attempted to do, that the Court should ignore all of that and to say that the causing of it to be sent was the act of the visitor to her blog who clicked on the hyperlink. The second analysis of Issue 1 considers the posting of the hyperlink by reference to the decisions in Collins and in Chambers. As Lord Bingham stated in Collins, the aim of section 21 is to protect the integrity of a public service and to prevent it being a means by which grossly offensive material may be enabled. That is precisely what the applicant was doing here. In addition, the answering machine situation in Collins is directly analogous to the hyperlink here, and, as per Chambers, it makes no difference if the message (in this case the hyperlink to the YouTube video) was stored as content or as a separate message. I agree with [Counsel] that it would be wrong to place undue emphasis on the technology that was involved in achieving the applicant’s aim. The third approach to Issue 1 is by reference to the non-binding authorities to which Mr Davies himself referred which dealt expressly with hyperlinks, albeit, as I have said, in the context of defamation. In my view, those authorities are not inconsistent with the approach that I have already outlined. On a proper analysis, both the Canadian Supreme Court in Crookes and the European Court of Human Rights in Magyar suggest that what might matter is the connection between the person posting the hyperlink and the underlying message. Was the defendant endorsing the underlying message, or was it just a footnote? There was room in both cases to say that the defendants were neutral hosts of current affairs sites who were not endorsing the particular message in question, but in the present case the answer is plainly different: the applicant was telling people that there was a video of her singing her songs and providing them with the means by which with one click they could access those performances. That was an unequivocal endorsement of the material. During the course of his helpful submissions, Mr Davies attempted a number of analogies in order to advance his arguments, including references to blackmail letters sent from abroad, messages to the speaking clock and even a libretto prepared without the author’s permission. As my Lady pointed out during argument, in the modern digital age such analogies are unhelpful. The Court has to deal with the modern world as it is, in order to see whether or not the offence is created by this relatively recent statute have captured this particular type of behaviour. That is at root a relatively simple task, and analogies with other means of communication do not assist." Criminal Solicitors Leeds The Californian server point Counsel argued on her behalf that a communication could not be made with or to an inanimate object. Therefore, in relation to the third charge, he said that the sending of the video to YouTube’s server meant that there was no communication and therefore no basis for a conviction under section 127(1)(a). This argument received short shrift from the Court, which held: "In my view, this argument fails for four separate reasons. First, there is nothing in the Act to provide any support for the proposition that the message had to be received by a human being in order for the offence to have occurred. [Counsel] accepted that the intended recipient did not need actually to receive it, but maintained that there had to be such an intended recipient in the first place. Such a qualification would, in my view, be contrary to the words of section 127, which is dealing with individuals using a public electronic communications system to send or cause to be sent messages of a particular kind, and does not stipulate if, when, how or by whom any such message has to be received. Secondly, assuming that [Counsel] is right and there had to be an intended recipient, it is wholly unrealistic to suggest that the video uploaded to YouTube was “a packet of data always intended for an inanimate object” (paragraph 39 of Mr Davies’s skeleton). In my view, it was no such thing: it was a video of a song performed by the applicant, uploaded to YouTube by the applicant, intended solely to be seen by other people. So there were intended recipients, and the criminal offence cannot disappear because the applicant used the YouTube platform as her chosen method of communication. Thirdly, I consider that [Counsel's] contentions are contrary to Collins. Lord Bingham made clear that the offence was complete when the message was sent to the inanimate answer machine (see [8] of his judgment, which I have cited); what happened thereafter was irrelevant to the offence. Otherwise, as he pointed out, criminal liability would turn on the happenstance of, for example, whether the message was received by an individual or not. Moreover, in the light of Collins and the challenges of the digital age, I would suggest that John Stephenson J’s remark in Treacy v DPP [1971] AC 537, on which Mr Davies also relied, that the sort of demand with menaces required for blackmail “cannot of course be an offence if made to the winds” was not meant in a general way but went specifically to a necessary ingredient of the offence of blackmail. It is not applicable here, save perhaps to note that, 50 years on, it might be thought that sending messages to the winds (or certainly the clouds) was a prescient, if rather romantic, description of the internet itself. Fourthly, [Counsel's] submissions are contrary to the approach in Chambers, Kingsley Anthony Smith and Sutherland. There is no reason to depart from either the reasoning or the result in any of those cases. There is no reason at all to distinguish between Twitter and YouTube for these purposes. For these reasons, the fact that the message in question was sent to the YouTube bunker in California, rather than, say, to the applicant’s next-door neighbour, is irrelevant in law. The offence under section 127(1)(a) was made out when the video was downloaded to YouTube by the applicant with the intention that people might view it. That is therefore the answer to Issue 2." Our crime team carefully monitor all developments in case law and legislation to ensure our clients always receive the best advice. At all stages we seek to test the boundaries of current law in order to protect your best interests. 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] more stories |