No laughing matter? The Psychoactive Substances Act
In December 2013, the Home Office appointed an expert panel to investigate what it saw as the increasingly problematic use of psychoactive substances, including nitrous oxide, better known as laughing gas. An expert panel, made up of senior law enforcement officers, policy advisors, academics and medical professionals considered a number of alternative approaches that had already been adopted in other parts of the world. The result was the Psychoactive Substances Act 2016, which came into force in May last year.
Within the Act, a psychoactive substance is defined as ‘a substance which produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, if affects the person’s mental functioning or emotional state’. Of course, this wide definition would include items such as tobacco, alcohol and caffeine and other foodstuffs, so the Act included a list of exempt substances. Also within the exempted substances list are medicinal products, which includes ‘any substance or combination of substances that may be used or administered to human beings with a view to restoring, correcting or modifying a physiological function by exerting a pharmacological, immunological or metabolic action, or making a medical diagnosis’.
In two recent Crown Court cases, prosecutions were brought against individuals who had attempted to supply nitrous oxide, more commonly known as laughing gas. The cases collapsed when the prosecution experts took the view that nitrous oxide was covered by the medicinal products exemption. According to the BBC, around 50 people have already pleaded guilty to the same offence, and this was the first occasion that the charges had actually been contested.
Clearly this piece of legislation will require an urgent review. As it stands it is failing to meet the basic issue it was designed to address.
If you require advice about a similar case, or any other criminal case, please contact us info@jfhcrime.co.uk or on 020 7388 1658.
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The fine line of social commentary
A recently issued guidance note from the Solicitors Regulation Authority (SRA) has sparked a very carefully worded debate about the fine balance of social media, personal comment and the implications a solicitor’s private opinions may have for their professional careers if they spill over into public forums.
The guidance includes reference to the appropriate conduct to be adhered to in practice and professional scenarios, which one would hope are adhered to out of general common sense and decency, but what seems to have prompted the publication is the section dealing with solicitors and their conduct outside of practice.
Although most solicitors do indeed uphold the professional standards expected of them there are times when the SRA has to intervene following complaints by members of the public. Given the potential sanctions, which include exclusion from practice as well as heavy costs and fines, it is of great importance that solicitors know how to avoid falling foul of the SRA when using social media.
One recent example which has featured in the Law Society Gazette was the case of Majid Mahmood who was fined £25,000, suspended from practice for 12 months and ordered to pay £9,500 in costs. His punishment was issued for posting offensive comments on Facebook about shooting ‘Zionists’ and blowing up the ‘chosen people’. To make matters worse Mr Mahmood went on to tell other users to ‘go and fuck yourself’ when it was suggested his comments would be reported to the SRA.
The comments were not made in any professional capacity, nor did Mr Mahmood explicitly state that as a solicitor his opinion did or should carry any additional gravity. However, a hyperlink to his name showed that his job title was a ‘senior solicitor’ with his then employer. The offending posts were removed as apparently was the entire Facebook account.
This case highlights the importance that the SRA and Solicitors Disciplinary Tribunal place on maintaining the integrity of the profession to such a high standard that solicitor’s private lives are also potentially subject to heavy scrutiny.
We do not in any way condone Mr Mahmood comments or the subsequent argument with those seeking to challenge him but it does raise the question as to where the line should be drawn in relation to both freedom of information and privacy & family life.
The rise of social media and the ease with which we access it on a daily basis means that it is now easier than ever to express our opinions, whether popular or not. Although Mr Mahmood was not hiding behind a pseudonym or anonymity there are many who do and many who use that cloak to make comments and threats even more offensive than those referred to here.
In its guidance, the SRA reminds solicitors that the principles that have to be upheld outside practice are the administration of justice, public trust and integrity. We would all do well to abide by the recommendation to conduct ourselves with integrity rather than perpetuating online abuse which quite frankly the majority of society would not tolerate, permit or spout in the real world.
The legal profession is one which most of its members are proud to be part of and who would not act contrary to the SRA guidance; issuing this guidance could be seen as somewhat draconian bearing in mind the many other issues the profession faces.
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Cyclist Charlie Alliston guilty of ‘wanton and furious driving’ over pedestrian’s death
Cyclist convicted of ‘wanton and furious driving’
Undoubtedly, cycling in London and other major cities is an issue which causes great debate amongst road users and both drivers/non-drivers alike. The recent case of Charlie Alliston, who has been convicted of wanton and furious driving, has brought that debate to the fore once again.
The issue in this specific criminal case at the Central Criminal Court (The Old Bailey) was whether the actions of this particular cyclist amounted to manslaughter or not. Ultimately the jury were unable to agree that they did.
Additionally, this defendant was charged with the offence of causing bodily harm by wanton or furious driving contrary to section 35 of the Offences Against the Person Act 1861. For from being an archaic piece of law, this Act is still used on a daily basis; it is the act that is used for prosecuting offences such as ABH, GBH and many others.
In brief, the facts were that Mr Alliston was cycling what is known as a ‘fixie’ bicycle which has no front brake attached, a legal requirement in the UK for a bike of this type. He then struck a pedestrian, Kim Briggs, as she crossed the road. The injuries resulting from the collision were catastrophic and she later died as a consequence of them.
In order to secure a conviction for manslaughter, the Prosecution needed to demonstrate that the death of Mrs Briggs was as a result of a grossly negligent act or omission on the part of the defendant. A four-stage test applies, namely that there was:
a) the existence of a duty of care to the deceased;
b) a breach of that duty of care which;
c) causes (or significantly contributes) to the death of the victim; and
d) the breach should be characterised as gross negligence, and therefore a crime.
It is well established that a duty of care exists between road users. Arguably there was a breach of that duty by making a conscious decision to take a bicycle on to the road when law requires that it be fitted with a front brake – the issue as to whether the cyclist may or may choose not to use that brake is entirely separate.
During the course of the trial, the prosecution argued that the absence of the brake was a significant factor in the collision as it materially altered the stopping distance of the bicycle. Had it been fitted with two brakes it could very well have been able to stop prior to hitting Mrs Briggs. This goes to the heart of both whether it caused or contributed to the death of Mrs Briggs and whether the breach was grossly negligent.
The jury were unable to agree, either unanimously or on a majority of 10-2, that Mr Alliston’s actions did amount to manslaughter. Although no justification is needed, or indeed provided, for their decision our opinion is that the prosecution is likely to have failed to get over the final two hurdles. Mr Alliston was portrayed by many sources as arrogant due to his attitude, both at trial and on internet forums, commenting on the accident at the time. However, he maintained throughout that Mrs Briggs had contributed to the accident by crossing when it was unsafe to do so, and had not been paying sufficient attention as she was on her phone at the time. It is likely that Mrs Briggs’ inattention may well have been a factor in acquitting Mr Alliston. It should be noted that the Jury have had the benefit of viewing CCTV as well as hearing all of the evidence and not being reliant on press reports.
Even though the manslaughter charge was not proven, there was a conviction in relation to the wanton driving charge. The burden in relation to that offence was far easier for the prosecution as it requires that a person be convicted if ‘having the charge of any…vehicle, shall by wanton or furious driving…, or other wilful misconduct, …do or cause to be done any bodily harm to any person’.
Choosing to ride a bicycle which does not meet the required safety standards would almost certainly fall within the ‘wilful misconduct’ aspect of the offence. Ignorance of the law is not a defence.
What next for Mr Alliston?
Sentencing was postponed until 18th September with custody being a very strong possibility. As the Offences Against the Person Act 1861 was originally enacted to prevent horse and carriage riders from causing injury on the roads, its application to bicycles in a modern city environment is relatively rare. It is not used for drivers of motor vehicles, simply because there are sufficient other offences to cover them. Of the two recent examples both Darryl Gittoes and Darren Hall received custodial sentences of 12 and 7 months custody respectively. However, both pleaded guilty to their crimes and therefore would have been afforded some credit by way of a reduction in their sentences.
Mr Alliston should expect to receive higher than 12 months. His comments at the time and clear lack of remorse may well come back to haunt him in the sentencing exercise.
Whatever the outcome for Mr Alliston may be, there has been a loss of life which sounds as though it could very well have been prevented. We hope that this tragic incident serves as a reminder that proper care an attention be taken by all road users, motorists, cyclists and pedestrians alike.
5 important legal rules you should consider while cycling
– Every bike must have two braking systems.
– If you are riding a bike at night, you must have white front and red rear lights, as well as a red rear reflector.
– You must have amber pedal reflectors when riding between sunset and sunrise.
– There is no legal requirement to have a bell.
– You can be fined for ‘cycling furiously’ or ‘riding furiously’.
If you are facing criminal proceedings and want the team at JFH Crime to represent you, please contact us on 020 7388 1658 or lawyers@jfhlaw.co.uk
Duncan Roberts, Solicitor
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Will online ‘hate crime’ be prosecuted as seriously as face-to-face ‘hate crime’?
New guidelines were published on 21st August by the DPP on how to proceed with ‘hate crimes’ suggesting that the CPS has formally recognised the far-reaching impact online ‘hate crimes’ may have. In response to this problem, they have promised to prosecute such crimes as robustly as offline ‘hate crimes’.
To achieve this aim, the CPS will rely on a revised guidance on the prosecution of social media cases. This guidance is to be used by prosecutors tasked with making a charging decision and/or to advise the police on their investigation.
The guidance makes clear that all forms of online communication, including emails, text, pictures, retweets and sharing on social media platforms, are covered. There is greater recognition of the diverse types of online ‘hate crimes’. For example, individuals who encourage grossly offensive, indecent, obscene or false communication through tweets/retweets, creation of derogatory hashtags or doxing may be charged of a criminal offence under section 44 of the Serious Crime Act 2007.
Cyberstalking in ‘hate crime’
“Cyberstalking”, although not a criminal offence in its own right, is a form of online harassment and may be used as an outlet to exert power and control in committing Violence against Women and Girls (VAWG) offences. The guidance sets out a number of examples of cyberstalking including ‘baiting’, posting ‘photoshopped’/altered images of complainants online, creating false profiles on social media, hacking, monitoring and controlling the complainant’s accounts. Threats of serious injury or rape on women have previously been communicated by sending a picture or a video of another being subjected to such assaults.
If a prosecutor makes a decision not to prosecute, they are reminded to advise on whether it is appropriate for other orders be applied for, such as Prevention Orders, Criminal Behaviour Orders, Restraining Orders and Domestic Violence Protection Notices and Domestic Violence Protection Orders, as a means to restrain a person from their use of social media.
Encouragement is also given to persons subjected to abuse online to report the abuse to the police and/or to the social media platform, and to retain evidence by taking screenshots of the offensive communication.
Whilst this guidance does not reflect a change in the law, it does signal a change in approach by the CPS to these types of offences. It will only become clear in the next few months whether the CPS and the police will adopt a proportionate approach to the prosecution of these offences.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss any criminal matter with us further. We have a dedicated team of lawyers specialising in crime who are here to help you.
Cheryl Low, Solicitor
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Interview under caution; What does it mean? Should I go? Do I need a Solicitor?
An interview under caution at the police station is also known as a ‘Caution plus 3’ interview, or a voluntary interview. You will usually be contacted by a police officer who will ask you to come to the police station at a certain time because they want to talk to you about an offence, usually a fairly minor one or something that happened a while ago. Sometimes they will tell you they just ‘want a quick chat’. Even if you are not under arrest, what you say or don’t say in your interview is still important. It can make a big difference to the outcome of your case, so you should still have a solicitor.
Interview under caution; your rights
We will make arrangements for you to attend the police station at an appointed time. You are entitled to free and independent legal advice, so we will attend the police station with you. You still have the right not to answer any questions, but what you say in your interview can be used at Court, if your case gets that far.
You are free to leave at any time, although if you leave before the interview there is the danger that you could be arrested. If you attend the police station as a volunteer you should not be arrested, unless the officer can show that one of the grounds for arrest exists. You probably won’t be searched and you won’t have your DNA and fingerprints taken. You will not have to go into a cell.
Following your interview under caution, you will be free to leave. The Police or the Crown Prosecution Service (CPS) will then decide how to proceed. Should they decide that there is sufficient evidence against you and that you should go to Court, then you will be sent a summons in the post. The summons will detail the charge against you and will give you the date to attend Court.
If you have any questions or you want us to assist you in arranging a voluntary interview, please contact us on 0207 388 1658 or email lawyers@jfhlaw.co.uk, and ask to speak to one of our experienced criminal lawyers.
John Howey, senior solicitor
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Will this alleged paedophile finally be extradited to the USA?
Roger Giese faces extradition again
On 14 August 2017, DJ Margot Coleman, sitting at Westminster Magistrates’ Court, sent the request for Mr Giese’s extradition to America to the Secretary of State (“SSHD”).
This is the second bid from the US Government to have Mr Giese extradited
American paedophile Roger Giese
The first set of proceedings started in 2014. Mr Giese argued that his extradition would be in breach of his Article 5 (right to liberty and security) human rights. In 20 US States, once a convicted person has served their sentence they can be made subject to a form of indeterminate confinement in a secure facility, known as a civil commitment order. He succeeded in this argument and DJ Coleman refused his extradition. The US Government appealed against this decision to the High Court.
The High Court gave the US Government an opportunity to seek an assurance that they would not seek a civil commitment order against Mr Giese if he was convicted. The US Government gave an assurance but it was deemed to be unsatisfactory as it was a qualified assurance. The appeal was dismissed. The US Government then applied to certify two questions and/or to reopen the appeal, but this application was dismissed by the High Court as they recognised that it was an attempt by the US Government to “have a second go” at a revised form of assurance, and was not a proper use of Criminal Procedure Rule 50.27.
The US Government re-issued the warrant for Mr Giese for the same offences he was previously sought for, with a revised assurance. DJ Coleman accepted that this assurance meant that there is no longer a real risk that his Article 5 rights will be in breach.
Unlike criminal proceedings in this jurisdiction, it is usually considered entirely proper for Governments and Judicial Authorities to re-issue warrants if their bid for extradition fails the first time. Criminal Practitioners may question whether this sits well with established principles of dual criminality and/or the need for finality in litigation. Mr Giese’s current legal representative argued that the re-issued warrant was “unfair and oppressive”, and we anticipate this will soon be considered again at the High Court.
Errors made by the media
The BBC and other news outlets have reported that he has two weeks to appeal. This is incorrect. Mr Giese’s legal representatives now have 4 weeks to make written representations to the SSHD to prevent his extradition. In most cases, the SSHD will decide in favour of extradition if the Court sends the request to them (the case of Gary McKinnon being such an exception). The SSHD has to make the decision within two months, and if extradition is ordered Mr Giese will then have the opportunity of lodging an appeal to the High Court within two weeks from that decision.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
Cheryl Low, Solicitor
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How does Legal Aid work in Extradition cases?
Not everybody is aware that legal aid can be, and often is, granted in extradition cases. The procedure is the same as for a standard criminal case and involves an application to the Legal Aid Agency in the usual way. It is the same means test as for Magistrates Court cases, but the merits test is automatically passed. Claims for payment are made to the LAA as a non-standard fee.
If there is an appeal, either because the requested person wants to challenge the decision or because the Judicial Authority wants to appeal against the warrant being discharged, the case goes to the High Court. Legal Aid applications for appeals are made directly to the High Court, and are not subject to a means test (or the merits test). The High Court has not quite kept pace with the digital advances elsewhere in the justice system, and the application is still made on the old paper version of the CRM14.
Payment for work in the High Court is different; it involves submitting an itemised bill to the Senior Courts Costs Office for assessment.
In our article Can I get legal aid for my extradition case? you can find further information regarding legal aid and extradition.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior Solicitor
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Can I challenge my Extradition?
Most people arrested on an extradition warrant understandably want to fight their extradition. However, there are only a limited number of challenges that can be raised to a valid extradition warrant. If it is a European Arrest Warrant (EAW), the District Judge hearing the case does not look at the evidence against you in the country asking for your return. They are not concerned with whether you are guilty of the offence or not. They are simply dealing with a request for you to be extradited to be dealt with under the law and procedure in the requesting country.
The passage of time
There are 10 ‘bars’ to extradition in the extradition act. The most commonly used of these (apart from Human Rights issues) is the passage of time, where a person argues that because of the amount of time that has passed since the offence it would be ‘unjust’ or ‘oppressive’ to extradite them. Although it is common for long periods of time to pass between the offence and a person’s arrest, most people are not able to use this as a reason to oppose their extradition. If a person knows about the case but decides to leave the country and this causes the delay, they cannot say that the amount of time that has passed means they should not be extradited.
The forum bar
One bar to extradition that is rarely used at the moment but is likely to become more common is the ‘forum’ bar. That can be used when a lot of the criminal activity is said to have happened in the UK and it is in the interests of justice that the person should not be extradited. The effect of extradition being barred in this way is likely to be prosecution in this country, but there are many reasons why someone might want to be dealt with here, rather than in another country.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior Solicitor
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Tension between the UK Supreme Court vs ECJ jurisdiction post-Brexit, from a EAW perspective
Earlier this week it was reported that the Brexit Secretary, David Davis, plans to give the UK Supreme Court the final say in deciding extradition requests for British citizens under any post-Brexit European Arrest Warrant (EAW) system.
We do not know whether this proposal means that the UK courts, when dealing with non-British citizens, will continue to have the benefit of referring questions to the European Court of Justice (ECJ), but it is difficult to see how this would work in practice. It is unlikely to be the case, and perhaps David Davis meant that the UK should remain in the EAW system but have an arrangement similar to Iceland and Norway.
Surrender procedure agreement between the EU and Iceland and Norway
Iceland and Norway signed an agreement with the EU on 21 October 2006 to implement the EAW. The agreement is largely based on the same the framework decision that all EU states are operating on with two important distinctions.
Norway and Iceland were granted a ‘nationality exception’ whereby both countries and EU Member States may declare that their own nationals will not be extradited unless authorised in certain specified conditions. There is also a provision for reciprocity if one country makes such a declaration. This means that if the UK declares that they will not extradite any British citizens, then the other EU Member States may reciprocate and will not extradite their own citizens to the UK. We query whether this conflicts with the principle of mutual trust and respect that underpins the EAW system.
The agreement with Iceland and Norway is not yet in force and there is no indication when it will be. It is uncertain how this agreement will work in practice. In any event, the Icelandic government has decided not to avail themselves of the nationality exception opt-out.
Although Iceland and Norway are not subjected to the ECJ’s jurisdiction (except for EEA matters), they have agreed to periodically review and take into account the ECJ’s decisions on the EAW. If the UK adopts the same agreement as Iceland and Norway post-Brexit, then ECJ’s decisions may be persuasive, albeit not binding authorities. This brings about its own host of uncertainty. Lord Neuberger has foreseen this and on 8 August 2017, he publicly sought for clarity from the government on how the UK Judges should approach ECJ’s Judgements post-Brexit (BBC News report here).
We have previously discussed -in our article The EAW after Brexit– why we feel that it is unworkable for the UK to retain the EAW and exclude itself from the jurisdiction of the ECJ. The latest proposals simply underline the uncertainty that Brexit will bring to the EAW scheme and the UK’s place within in it.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
Cheryl Low, Solicitor
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Minor offence: proportionality in extradition
Can I get extradited by a minor offence?
Every so often, there are newspaper reports of people facing extradition for what appear to be minor offences; for example, recently there were reports of a man wanted in Greece for offences of joyriding and criminal damage. We have recently dealt with a case where a man was wanted in Poland for ‘abusing a police officer’ and refusing to put an advert in his local paper apologising to the officer.
In 2014, the Extradition Act had a new section added to it to deal with this sort of situation. Where a person is accused of an offence, the Judge has to decide that his/her extradition would not be disproportionate. The section says what the Judge can take into account:
1. The seriousness of the offence.
There is a list of offences that could be seen as not being serious enough; minor theft such as shoplifting, driving offences where nobody was hurt or minor criminal damage, but it is up to the Judge hearing the case to make that decision.
2. The likely penalty if the person is found guilty.
As far as the likely penalty is concerned, the Judge has to consider whether a person is likely to get a prison sentence if they are found guilty. That decision has to be based on the sentences likely to be passed in the requesting country, not the sentence that would probably be passed in this country.
3. The possibility of the foreign authority taking ‘less coercive measures’.
Less coercive measures can include the person agreeing to return voluntarily, appearance via videolink, or answering a summons.
Before an EAW (European Arrest Warrant) is issued, the National Crime Agency has to consider whether extradition would be proportionate, so a number of warrants that would probably be seen by a judge as being disproportionate never actually get to court in the first place.
Please contact us on 0207 388 1658, or email jhowey@jfhlaw.co.uk if you wish to discuss your extradition matter with us further, or to find out whether you would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior Solicitor
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