A suspended sentence is a term of imprisonment that is suspended, so that you do not go into custody immediately. You will not go into custody if you comply with the conditions attached.
Who can get a suspended sentence?
In the Magistrates’ Court, any sentence of 6 months’ imprisonment (12 months for two or more either-way offences) or less can be suspended. In the Crown Court, any sentence of 24 months or less can be suspended.
The minimum length of imprisonment for a suspended sentence is 14 days.
It follows, therefore, that if your offending warrants a sentence above the maximum level, or you are sentenced as a dangerous offender, you will not receive a suspended sentence.
This sentence is also not available for youths.
When can a sentence be suspended?
The sentencing court will first consider whether or not a custodial sentence should be imposed. In legal terms, this is whether the “custody threshold” has been passed.
If custody of one of the lengths discussed above is imposed, the Court can then move on to decide whether it can be suspended or not.
In considering whether the sentence can be suspended the Court will look at the particular circumstances of the offence and offender. The Judge will also consider the sentencing guideline that applies to this scenario.
Factors to consider would be whether there is a realistic prospect of rehabilitation, strong personal mitigation and the impact of immediate custody on others.
Mitigating against a suspension would be that the offender is a risk or danger to the public, the most appropriate punishment is immediate custody and a poor history of compliance with court orders.
How long can it be suspended for?
From six months up to two years (the ‘operational period’).
What conditions may be imposed?
A sentence is suspended on condition that you do not commit any further offences during the operational period. A straightforward order will only have this condition.
Additionally, you can have a suspended sentence order that is subject to further requirements. These will be similar to those in a community order. This can include unpaid work, a curfew and supervision with the Probation Service. If you are subject to such an order, it is also suspended on condition that you comply with the requirements imposed.
What happens if I breach a suspended sentence order?
You can breach an order by either committing an offence within the operational period or failing to comply with any requirements imposed.
The starting point for breach of an order is to activate the period of imprisonment. The length of imprisonment may be reduced to reflect the level of compliance with the order and any requirements. If it is unjust in the circumstances to activate the sentence the court has various options. You may be fined for the breach, given further or more onerous requirements, or the operational period may be extended.
If you do not comply with the requirements, you will be summonsed to attend court. If you commit a further offence, you will be arrested and charged, or interviewed under caution and summonsed. We can provide advice throughout the proceedings, from the police station, at court and for any breach proceedings.
How can we help?
If you would like to discuss any aspect of your case, please contact John Howey on 020 7388 1658 or email@example.comRead More
In legal shorthand we often refer to section 18 or 20 GBH offences. These refer to specific offences under the Offences Against the Person Act 1861.
What is the difference between section 18 and section 20?
The most serious form of assault (short of attempted murder) is grievous bodily harm (GBH) or wounding.
When the offence is committed with the intention to cause GBH, it is an offence under section 18. The maximum sentence is life imprisonment. The same offence committed without intent (section 20) has a maximum sentence of 5 years.
For an offence to be committed unlawfully and maliciously, it means that there is no defence such as self-defence, force used for preventing crime, defence of property or another.
There are also some other technical differences between the two offences.
What is GBH?
GBH or grievous bodily harm is really serious bodily harm, so would include broken limbs for example. It can also include psychiatric injury.
What is wounding?
Wounding is where the skin is broken (either internally or externally).
Section 18, the intent offence
For the more serious offence, an intention to cause serious injury or wounding is required.
A jury needs to be satisfied that the offender intended to cause the harm, by considering all of the relevant circumstances. This will include what the offender did and what he said about it.
What about weapons?
The use of a weapon will make any offence more serious, and will often be evidence of an intent to cause GBH. Weapons include knives, bottles, throwing acid etc. Feet used to kick are also considered to be a weapon, and biting is also an aggravating feature.
Section 20, without intent
The difference between a Section 18 and a Section 20 offence is that for a Section 20 offence you did not intend to cause the injury. An example would be if you punched someone once and they fall causing a serious injury or wound.
Your lack of intent may be taken from the way in which the assault was committed or your behaviour at the time and immediately afterwards.
What sentence will I get?
For an offence with intent it is almost inevitable that a term of imprisonment will be imposed. The guidelines range from 3 years for a less serious offence through to 16 years for the more serious offences.
Examples of sentences imposed are nine years when a bottle was used to strike the face requiring thirty stitches; nine years also imposed for causing a fractured arm with a baseball bat, knocking down and driving over a police officer, kicks to the head on the floor causing extensive facial fractures.
For offences under section 20 the maximum sentence is 5 years, so a non-custodial sentence is more likely. The guidelines range from a community order to 4 years imprisonment.
How can we help?
The difference in sentencing for an offence without intent means that this issue has to be considered carefully in the context of all of the evidence.
We can advise you whether intent and other offence elements can be proven, and the prospects, if appropriate, of a plea to the lesser offence being acceptable to the prosecution and the court.
The law is complicated and the potential consequences severe. For expert advice, please contact John Howey on 020 7388 1658 or firstname.lastname@example.org.Read More
After a recent spate of assaults involving the use of acids and other corrosive substances, the government has acted to try and curb their use. At the present time around 15 offences per week involve the use of acid and other like substances.
In January 2018, the Home Office announced a voluntary agreement with a number of major retailers in which they made commitments about the responsible sales of corrosive substances. This included not selling products containing the most harmful substances to under 18s. The agreement was developed with the British Retail Consortium and also tested with the Association of Convenience Stores and the British Independent Retailers Association, to ensure that the commitments were proportionate and worked in the retail environment.
The major retailers who have signed up to the commitments are: Wickes, Screwfix, B&Q, Wilko, Waitrose, John Lewis, Tesco, the Co-op, Morrisons, Aldi UK, Lakeland, Asda and Homebase.
On 1st November 2018 new legislation came in to force to further strengthen the controls against possessing corrosive substances.
There are controls in the Poisons Act 1972 on corrosive substances that can be used as poisons or as to make explosives.
Parliament has enacted a statutory instrument which makes sulphuric acid a regulated explosives precursor above a concentration level of 15%.
The effect of this will mean that members of the public will require a licence from the Home Office to be able to import, acquire, possess or use sulphuric acid.
What is the penalty for breaching this law?
If found guilty, the offence carries a maximum sentence of 2 years’ imprisonment.
How can we help?
The law is complicated and the potential consequences severe, for expert advice, please contact John Howey on 020 7388 1658 or email email@example.com.Read More
There are two main offences that are prosecuted in relation to benefit fraud, one involves dishonesty, the other does not.
The dishonesty offence
It is an offence to dishonestly make a representation in order to obtain benefits, for example not declaring that you are working or have savings. This includes a dishonest failure to promptly notify a change in circumstances, as well as making a claim that is dishonest at the start.
The offence without dishonesty
It is an offence to knowingly make a false statement to obtain benefit. Again, this can be in an initial claim for benefits or failing to give prompt notification of a change in circumstances.
What does this actually mean?
The following definitions are given:
- Dishonesty – has its normal meaning in criminal offences, although the lesser offence does not require dishonesty it does require proof of knowingly failing to notify. The test for dishonesty was recently revisited by the Supreme Court and the result may well be that it is now easier to prosecute for a dishonesty related offence.
- Change in circumstances – there must be proof that the offender knew there was a change of circumstances and that the change would have affected a change in benefit.
- Changes in circumstance could include starting to live with a partner, getting a job or a winning the lottery.
- Promptly notify- prompt is to be given its natural meaning and is a matter of fact. It is for the prosecution to prove that it was not prompt. It is therefore essential to explore all of the surrounding circumstances as this may provide a defence, not only mitigation.
Are there other offences?
There are other offences of fraud and false accounting related to benefits that are not covered in this article.
What is the likely sentence?
The non-dishonesty offence an only be dealt with in the Magistrates’ Court and carries a maximum term of imprisonment of 3 months.
The offence involving dishonesty can be dealt with at the Magistrates’ Court or the Crown Court and carries a maximum of seven years imprisonment.
The main factors for consideration in sentencing will be the length of time of the overpayment, the value of benefits overpaid, and whether or not the claim was dishonest from the outset.
A claim that is of high value, over a sustained period and which was dishonest from the beginning is more likely to attract a term of imprisonment.
How can we help?
An investigation into possible benefit fraud often starts with a letter asking you to attend for an interview under caution. The interview is very important; what you say in the interview can be used against you at Court, but it can also lead to an out of court disposal, such as a caution or an administrative penalty, or no action being taken against you. In many cases we are able to attend the interview with you.
You can find out more about how Camden Council deals with benefit fraud here.
What if I have to go to Court?
Prosecutions for benefit offences frequently generate vast quantities of paperwork. We have a great deal of experience in considering such evidence, and our involvement may mean a lesser value is given to the overpayment which can have a direct impact on the potential sentence.
We can also assess any possible defences that may be available to you. Expert advice is crucial if you would like to discuss any aspect of your case, please contact John Howey, on 020 7388 1658 or firstname.lastname@example.orgRead More
The 2015 documentary series Making a Murderer follows the story of two men from Wisconsin whose confessions helped to convict them of sexually assaulting and murdering a woman.
One of the convicted was an impressionable teenager called Brendan Dassey. Dassey’s conviction was overturned in 2016 (confirmed on appeal in 2017) on the basis that his ‘confession’ to the murder was coerced by police officers who exploited his vulnerable nature.
What is the law in the England and Wales?
Provisions in the Police and Criminal Evidence Act 1984 allow courts to reject confessions of this kind on the basis that they were obtained ‘oppressively’ or are unreliable. The relevant statutory provisions are ss. 76(2)(a) and (b) and 77 of the Act.
What does “oppressive” mean?
The term ‘oppressive’ has caused problems for the courts. It seems to be agreed that oppression implies some “impropriety” which compromises the confession’s veracity: Fulling  QB 426.
Uncertainty exists, however, as the same sort of behaviour in different cases has led to the confession being excluded in one but not the other: Paris (1993) 97 Cr App R 99; L  Crim LR 839.
What about unreliability?
Aside from oppression, confessions may be excluded on the basis of unreliability. This unreliability may come about via “anything said or done” or something problematic concerning the circumstances in which the ‘confession’ was made.
An important point to note is that the suspect’s own conduct cannot undermine a confession: Goldenberg (1988) 88 Cr App R 285.
Another important reason to exclude a confession on the basis of unreliability is where the suspect is mentally unfit. There is a separate section of the 1984 Act dealing with this: section 77. In particular, this seeks to protect suspects who may be suggestible and may simply go along with police officers’ leading questions about an alleged offence.
Deciding on the admissibility of confessions
The actual process for deciding whether a confession can be admitted is a ‘voir dire’. That is essentially a mini-trial within or alongside the main trial. Section 76(2) of PACE gives guidance on this point.
The prosecution must prove to the criminal law standard that the confession was not obtained in the way alleged by the defence, otherwise it will be excluded. And, although there is some disagreement, the standard position appears to be that the defendant’s evidence at the voir dire cannot be admitted during any trial for the substantive offence: Wong Kam-ming  AC 247.
How we can help
If you are concerned about the conduct of police officers and/or the reliability of a confession made while in custody, please contact John Howey on 020 7388 1658, or email@example.com.Read More
There are two distinct criminal offences, one of harassment putting people in fear of violence and one without. Stalking is a similar but separate offence and is not covered in this article.
What does it involve?
There has to be a course of conduct involving as little as two incidents against another person or persons.
The dictionary definition is to “torment by subjecting to constant interference or intimidation”.
The law does not provide a comprehensive definition and there are many actions that can foreseeably alarm or cause a person distress that would not constitute harassment.
The offence is aimed at conduct that alarms or causes a person distress and which is oppressive and unreasonable.
What do the prosecution have to prove?
- That there is a course of conduct;
- which amounts to harassment of another; and
- which the defendant knows, or ought to know amounts to harassment of another.
Additionally, for the more serious offence the prosecution has to prove:
- that the course of conduct causes another to fear that violence will be used against him; and
- that the defendant knows or ought to know that his course of conduct will cause another to fear that violence would be used against him
How do I know it is harassment?
The test of whether you ought to know whether the course of conduct amounts to harassment is whether a reasonable person, in possession of the same information, would think the conduct amounted to harassment. The same test applies in respect of fear of violence.
Are there any time limits?
At least one of the incidents has to have occurred within six months of the charge, for the basic offence without violence.
What about defences?
There are three available defences for the basic offence:
- that the course of conduct was for the purpose of preventing or detecting crime;
- that it was conducted under a rule of law;
- that it was reasonable in the circumstances.
Additionally, it is a defence for the more serious offence if the course of conduct was reasonable for the protection of the defendant or another or for the protection of their or another’s property.
What sentence can I get?
For the offence without violence (the basic offence) up to six months imprisonment can be imposed (2 years if racially aggravated).
For the more serious offence involving fear of violence the maximum sentence was 5 years and is 10 years for offences committed on or after 3rd April 2017 (7 or 14 years if racially aggravated, again dependent on date of offence).
A restraining order can also be imposed, the aim of which is to protect the victim of the offence from further incidents, contact or risk of violence. Such an order can prevent contact with the victim and provide for an exclusion zone around their address. A restraining order can be imposed even if you are acquitted of the offence.
The law in respect of harassment and the potential defences is complicated, and there are other specific offences of harassment (for example of debtors) that are not covered in this article.
How we can assist
If you are being investigated for or have been charged with this offence please contact our office for further advice and representation, our solicitors are experts in criminal law and can guide you through the complexities. Please contact John Howey on 020 73881658 or firstname.lastname@example.orgRead More
You may have heard about ‘texts’ or a ‘brown envelope to the Judge’, some of the names for the old system by which someone could get a reduced sentence.
If you helped the police a ‘text’ may be handed to the sentencing judge explaining that you had assisted and a reduction in sentence may have followed. It was a murky world, clouded in some secrecy and one that few people properly understood.
A formal statutory system has now been put in place to regulate reduction in sentence for a defendant who aids the authorities, although the ‘text’ regime is still around.
The aim of the new regime is to govern assistance provided and the benefits that might flow as a result.
The old principles (the text) remain in use as it has always been the case that anyone convicted of a crime will receive credit against sentence for assistance rendered to the police or authorities.
Requirements under the new regime
The key features of the statutory scheme are:
- The offender must admit the full extent of his own criminality before the statutory framework can begin to apply, and he must agree to participate in a formalised process which has its own immediate purposes intended to avoid some of the problems which the earlier processes could create.
- Provided the offender admits the full extent of his criminality the process is not confined to offenders who provide assistance in relation to crimes in which they participated, or were accessories, or with which they are linked.
- This is largely a new process in which a post-sentence review of the sentence passed in the Crown Court can be reviewed in a judicial process on a reference back to the court by the prosecutor. That does not prevent there being such an analysis during a Crown Court sentencing decision.
- The decision whether a reduction in sentence should follow a post-sentence agreement is vested in the judge sitting in the Crown Court. The court is able to take into account the specific post-sentence situation. That is quite different from the former practice.
- If in the end the offender fails to comply with his agreement, that does not itself constitute a crime but he is liable to be brought back to the court and deprived of the reduction of sentence which has been allowed or would have been allowed if he had complied with the agreement in full.
New versus old
Following the new regime, rather than the old text regime, may result in a greater discount in sentence. There is no guarantee, however, that providing information will result in a reduction in sentence. It would very much depend on the nature of the information, how it can be used, and whether action can be taken by the police as a result (particularly action that might result in others being prosecuted).
It is important to note that as the formal regime requires full admissions of any criminality on your part, this may result in further charges being brought against you or further offences being taken into consideration on sentence. There is a careful decision to be made here.
How will I know if it has been taken into account?
The law says that if you are given a reduction in your sentence you have to be told that you have been given a lesser sentence and you must also be told what the greater sentence would have been. You will then know exactly how much of a reduction you were given.
How we can help
The decision is not an easy one, nor is the process, because of the potential consequences, which may include having to attend court as a witness, or receiving a longer initial sentence.
It is vital, therefore, that you obtain expert advice before speaking to the police. If this is something that you wish to discuss, please contact John Howey on 020 7388 1658 or email@example.comRead More
In recent years legislation has been enacted to ensure that crimes demonstrating hostility towards certain groups of people are treated more seriously than before. If an offence is said to be racially aggravated, then you should expect a heftier sentence.
What does it mean?
An offence is racially aggravated if, at the time of the offence, you demonstrate toward the victim hostility based on his / her membership of a racial group or the offence is motivated by that hostility.
So, shouting racist abuse or making comments, will make an offence racially aggravated, as will the situation where no comments are made but the offence is committed against someone because of their race.
Offences as a result of hostility toward a religious group, rather than racial, are treated in the same way.
The fact that the victim may be indifferent to any abuse is irrelevant to whether the offence is racially aggravated.
It is also irrelevant if the reason for the offence was unrelated to race. For example, abusing a doorman because he wouldn’t let your friend into a club.
How does it affect sentencing?
Each offence in law has a maximum sentence attached to it; for offences that are racially aggravated that maximum sentence is increased. For example, common assault carries six months imprisonment, the racially aggravated offence increases to a maximum of 2 years, for actual bodily harm the maximum sentence increases from 5 to 7 years.
The starting point is to consider the sentence that would have been imposed for the offence if it was not racially aggravated, considering all other aggravating or mitigating factors.
The sentence will then be increased to take account of the racial aggravation.
The extent of the increase in sentence will depend on the level of aggravation. The court will consider whether the offence was:
- part of a pattern of offending;
- deliberately set up to be humiliating to the victim
- committed in the victim’s home
- repeated or prolonged.
Account will also be taken of any distress caused to other persons or the wider community and whether the offender was a member of a group that promotes hostility.
Does it have to be charged as being racially aggravated?
Even if the offence isn’t specifically charged as being racially aggravated the circumstances can be treated as an aggravating feature in sentencing (O’Leary  EWCA Crim 1306).
How can we help?
We can advise you whether your behaviour does come within the racially aggravated definition or not, consider the evidence for you and we can also advise you on the likely penalty. This article is intended as a brief overview, if you would like to discuss any aspect of your case, please contact John Howey on 020 7388 1658 or email firstname.lastname@example.org.Read More
The answer is sometimes, but not always.
Two years ago, Nottinghamshire Police decided to label misogyny and offences targeting women as hate-crime or hate incidents. Two local universities recently undertook a report entitled “The Misogyny Hate Crime Evaluation” report which recommends rolling out the policy nationally.
Misogyny hate-crime is defined as “incidents against women that are motivated by the attitude of men towards women and includes behaviour targeted at women by men simply because they are women.”
This definition can include behaviour that is not criminal; these are recorded as hate incidents rather than hate crime, so something such as wolf-whistling may be recorded as a hate incident.
The policy does not criminalise that behaviour, but it may result in a discussion, for example, with building site managers if their workers are behaving that way.
In Belgium, however, such behaviour can be criminal. A man has been convicted under a new law which does criminalise sexism. He was stopped driving a car for breaking the highway code and told the female police officer to do a job “adapted to women”. He was fined €3,000 for insulting the officer because of her gender.
The offence in Belgium is expressing contempt toward a person because of their sexuality or treating them as inferior due to their sexuality; if it entails a serious attack on their dignity, it is punishable by up to 12 months in prison.
In France, they are preparing to create an offence of street harassment that is “sexist and sexual outrage”. Meanwhile, in Stockholm sexist advertising has been banned while the London Mayor, Sadiq Khan, has attempted to ban body shaming adverts.
UK chief constables met in July and to discuss the issue and whether the policy in Nottinghamshire would be rolled out. MPs are also to vote on whether misogyny should be made a hate-crime. The developments in the UK and other countries demonstrates how the law is continually evolving. It may be that this will be an aggravating feature of an offence when sentencing or disposal is dealt with.
How can we help?
You can be assured that we stay up to date as the law changes and will be able to provide you with expert, tailored advice. If you have been accused of any crime we can assist you, if you would like advice on any aspect of your case please contact John Howey on 02073881658 or email@example.comRead More
A few years ago, the National Probation Service was split into two. The existing service maintained its supervision of high-risk offenders, mainly those serving lengthy sentences or with complex rehabilitation needs. However, the remaining offenders, by far the vast majority, are supervised by companies which bid to carry out rehabilitation work, with payment mechanisms often linked to success.
These arrangements have been subject to intense scrutiny in recent months, and the findings are grim, to say the least.
This is of concern because many offenders commit crime due to underlying circumstances, which if not resolved will inevitably lead to subsequent offending. For example, drug, alcohol and mental health treatment programmes must work if the cycle of offending is to be broken.
A report this week looked at another group of offenders; those who commit offences of domestic violence or abuse.
Domestic abuse is defined as any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been, intimate partners or family members, regardless of gender or sexuality.
The abuse can encompass psychological, physical, sexual, financial and/or emotional harm.
Domestic abuse is the context within which an offence takes place rather than an offence.
There is no single offence of domestic abuse. Rather, a range of offences feature the behaviours exhibited as part of the pattern of domestic abuse. These include:
- physical violence
- psychological or emotional harm
- sexual violence
- ‘honour-based’ violence (for example forced marriage)6
- gang violence
- sharing or distributing intimate private videos or photographs of another person without their permission (so-called ‘revenge porn’)
- coercive and controlling behaviour.
An estimated two million people experienced domestic abuse last year.
A good proportion of people in receipt of probation services are domestic abusers, and domestic abuse constitutes a sizeable proportion of the work of Community Rehabilitation Companies.
This group has been shown to have some of the most complex needs in terms of rehabilitation, rehabilitation that is vital to protect the public and set the offender on a path that allows them to move beyond their troubled past.
Regrettably, yet another report makes grim reading, these are some of its findings:
“Overall, practitioners were not empowered to deliver a good-quality domestic abuse service. They had unmanageable workloads and many needed more training and oversight. Inexperienced probation workers had full and complex caseloads and, because of the emphasis on remote working in some CRCs, they were unable to obtain support from their colleagues. The lack of knowledge, skill and time dedicated to managing domestic abuse led to considerable shortfalls in the quality of case management.
Many assessments were superficial. The tools that staff were using to complete assessments did not always help them to analyse and assess their cases thoroughly.
This left them without the necessary understanding of the context of the domestic abuse and the factors linked to the behaviours in the case. Some plans were helpful and included appropriately sequenced, individualised objectives, but this was not common practice.
Some of the CRCs’ work to protect victims (and especially children) was of grave concern. There was little correlation between the vision CRCs had for victims and the quality of practice.
Many probation workers did not fully understand the effect of domestic abuse on families or the relevance of an integrated approach to managing risk of harm. As such, they focused their work solely on the individual. Assessments and plans lacked depth: the voice and needs of victims, and information from partner agencies, were not analysed sufficiently and used to inform work to reduce risk of harm. Probation workers relied too much on the decisions of other agencies, such as children’s social care and the NPS, about levels of risk of harm and safeguarding, without checking their validity. As such, they were not always able to make effective decisions about how to protect victims and children. They often failed to see the monitoring of external controls, such as restraining orders, or undertaking home visits, as an integral part of their work.”
Why does this matter?
We see many clients who bitterly regret their offending behaviour and seek help in addressing the underlying causes. A society that does not assist offenders to rehabilitate bears a heavy cost, both financial and worse. All policymakers must address the concerns in recent reports as a matter of urgency.
Please contact John Howey on 0207 328 1658 or firstname.lastname@example.org for assistance with any criminal law related enquiry.Read More