In a major announcement, the government has signalled a busy year ahead with legislative changes affecting the criminal law. Following on from the recent announcement about the sentencing of domestic abuse offences, the government has announced further reforms.
There will be a new definition of domestic abuse making clear that it applies to all relationships and victims and encompasses economic abuse and controlling behaviour.
The new statutory definition of domestic abuse (subject to consultation) is:
Any incident or pattern of incidents of controlling, coercive, 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 sexual orientation. The abuse can encompass, but is not limited to:
Controlling behaviour: Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Coercive behaviour: Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.
New Protective Order
The Government proposes to create a new Domestic Abuse Protection Notice (DAPN), which could be made by the police, and a Domestic Abuse Protection Order (DAPO), which could be made by the courts in a wide range of circumstances.
These measures would bring together the strongest elements from existing protective orders used in domestic abuse cases, creating a single, flexible pathway for victims, police and other practitioners.
While the existing domestic violence protection notice and order will be replaced by the new DAPN and DAPO regime, other existing orders, such as restraining orders, non-molestation orders and occupation orders, will continue to exist as these provide protection in situations other than domestic abuse.
The new order could be made by a court following a freestanding application, including by the victim and certain parties on the victim’s behalf (for example a family member or support service), and could also be made by a court during any ongoing proceedings, including on conviction or acquittal in any criminal proceedings.
The police would also have the power to apply for the new order, including after they had made a Domestic Abuse Protection Notice. In practice, this would mean that Domestic Abuse Protection Orders could be made in family, civil and criminal courts.
The new order would also be more flexible in terms of the conditions that could be attached to it, which could include both prohibitions (for example requirements not to contact the victim, including online, not to come within a certain distance of the victim, and not to drink alcohol or take drugs) and positive requirements. These positive requirements could include attendance at perpetrator programmes, alcohol and drug treatment programmes and parenting programmes. Electronic monitoring (for example location or alcohol monitoring) and notification requirements (for example the requirement for certain perpetrators to provide the police with personal information such as their address and details of relationship and family circumstances) could also be used as conditions attached to the new order.
There would be flexibility as to the length of time that the new order could be in place: it could be for a period to be specified by the court or until the court made further order, in contrast to the current maximum duration for the existing domestic violence protection order of 28 days.
It would be a criminal offence to breach a Domestic Abuse Protection Order.
How we can assist
We are experienced in defending all manner of domestic abuse accusations. Very often domestic incidents spiral out of control all too easily, and the first account made to a police officer may not reflect the full and detailed background, nor adequately explore the other side of the story. We take nothing at face value, preferring instead to step back and build our own accurate picture of the real prosecution and defence case.
In our experience, the protective order regime is often not applied correctly, and you can be assured that any orders sought will be no more onerous than properly prescribed by law, and subject to the most intense scrutiny.
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The death of a child is always a deeply traumatic act and one that shakes any society to its core. For some parents, it represents not only a deeply personal and tragic loss but the beginning of a nightmare.
The reality in most murder and manslaughter cases is that the perpetrator is known, and close to the victim. Investigators will, therefore, look closely at the parents when a child dies, an approach which for a grieving parent can only add to the pain that they are suffering.
Experts will be brought on board very quickly to establish a cause of death, and in some cases, this will be stated to be from injuries caused by excessive shaking, often of such force that it is described as being the equivalent of a car-crash.
An allegation of shaking is often based on the presence of three things (the ‘triad’):
- Swelling of the brain
- Retinal bleeding, and
- Blood in the dura (an area between the brain and skull)
The presence of these injuries, as proof of violent shaking, can be found mainly in medical literature emanating from the United States as early as the 1940s.
The research findings went largely unchallenged until 2001 when Dr Jennian Geddes published a paper that offered up alternative explanations for the medical results. In later years other experts would revisit this area of medicine, and they too argue that other factors may be in play.
Experts who have challenged the conventional interpretation of the ‘triad’ have often paid a hefty price.
Dr Waney Squier, a well-known expert in this area, who has acted in a great many cases, was struck off by the General Medical Council (Medical Practitioners’ Tribunal) following a prolonged campaign to discredit her.
However, the GMC finding was reversed by the High Court in November 2016 (Squier v General Medical Council  EWHC 2739 (Admin)).
The science in this area is still in a state of flux, and from a criminal law perspective that is a critical issue as cases must be proved to a standard so that the jury can be sure of the defendant’s guilt.
How can we assist?
The highest quality criminal defence work requires not only an understanding of the law, which should be a given but of other related areas, such as medicine. By quickly identifying the pertinent issues we can pull together a top team of advocates and experts with an intimate knowledge of this complex area.
At the same time, we do not lose sight of the fact that people facing these allegations are still in a state of profound shock and grief.
For a confidential and private consultation, please contact John Howey on 020 7388 1658 or firstname.lastname@example.orgRead More
Knife crime is very much on the political agenda, with a number of stabbings having taken place over the last few weeks, resulting in deaths and injury, and no doubt the loss of liberty in due course for those responsible. Attention is now focussed on using deterrent sentences to discourage knife possession.
The Sentencing Council, which is responsible for setting sentencing guidelines in England and Wales, has today issued a new guideline for knife crime offences.
What offences does it cover?
The guideline applies to offences of:
- Possession of an offensive weapon in a public place
- Possession of an article with a blade/ point in a public place
- Possession of an offensive weapon on school premises
- Possession of an article with a blade/ point on school premises
- Unauthorised possession in prison of a knife or offensive weapon (adult guideline only)
- Threatening with an offensive weapon in a public place
- Threatening with an article with a blade/ point in a public place
- Threatening with an article with a blade/ point on school premises
- Threatening with an offensive weapon on school premises
The guideline does not cover situations where a knife or other weapon is actually used to harm someone. This would come under other offences such as assault or murder/manslaughter. Similarly, it does not include the use or possession of firearms which is covered by different legislation.
Does the guideline apply to all offenders?
The new guideline applies both to adults and those under 18. In relation to the latter, the guideline will work alongside the Sentencing Children and Young People guideline and encourage courts to look in far greater detail at the age/ maturity, background and circumstances of each offender in order to reach the most appropriate sentence that will best achieve the aim of preventing reoffending, which is the main function of the youth justice system.
What will be the effect of the new guidance?
Leading Court of Appeal judgments have emphasised the seriousness of this type of offending and have set out sentence levels that senior judges see as appropriate for dealing with offenders.
The proposed guideline takes these changes to the law and court judgments into account in consolidated, up to date guidance. It ensures that those offenders convicted of offences involving knives or particularly dangerous weapons, as well as those who repeatedly offend, will receive the highest sentences. The introduction of the guideline may, therefore, lead to some increases in sentence levels, predominantly in relation to adults convicted of possession offences.
Are there any minimum sentences for these offences?
The law on mandatory sentences for offences involving bladed articles or offensive weapons states:
- Where an offender is convicted of a second (or further) bladed article/ offensive weapon offence the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.
- Where an offender is convicted of threatening with a bladed article/ offensive weapon the court must impose a mandatory minimum sentence of 6 months’ imprisonment for an adult or 4 months’ Detention and Training Order for a youth (under 18), unless satisfied that there are circumstances relating to the offence or the offender that make it unjust to do so in all of the circumstances.
As the guideline gives the highest sentences to those offenders who threaten with knives or highly dangerous weapons, these offenders will always receive sentences greater than six months. The combination of the legislation and the guideline may therefore mean that there is an increase in sentences received by some offenders convicted of these offences.
Where the seriousness of the combined offences is such that it falls far below the custody threshold, or where there has been a significant period of time between the offences, the court may consider it unjust to impose the statutory minimum sentence.
The court should consider the following factors to determine whether it would be unjust to impose the statutory minimum sentence:
- Strong personal mitigation
- Whether there is a strong prospect of rehabilitation
- Whether custody will result in significant impact on others
What about ‘highly dangerous weapons’?
Additional guidance has been included as to what constitutes a highly dangerous weapon.
This has been set out as follows:
“An offensive weapon is defined in legislation as ‘any article made or adapted for use for causing injury or is intended by the person having it with him for such use”.
A highly dangerous weapon is, therefore, a weapon, including a corrosive substance (such as acid), whose dangerous nature must be substantially above and beyond this. The court must determine whether the weapon is highly dangerous on the facts and circumstances of the case.
How we can assist
Sentencing is a complex process and all of our advocates understand how to navigate sentencing guidelines and ensure that they are not applied in a mechanistic manner, instead ensuring the court focusses on all relevant considerations.
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In February, the Supreme Court in Ireland raised some eyebrows when it refused to extradite a man wanted in the UK for tax fraud. The case was instead referred to the European Court of Justice.
The Irish Supreme Court noted that the sentence that had been imposed meant that the requested person would still be in custody when the UK leaves the EU in March 2019. As a result, it was unclear what legal regime would apply to him after that time.
Now, an Irish Court has refused to extradite a Polish man, wanted on drugs charges. His case has also been referred to the ECJ, for them to consider the impact of the significant changes to the Polish legal system. Laws passed at the end of last year gave the Government significant control of the judiciary, allowing ministers to appoint Judges and effectively removing judicial independence.
A fundamental part of the European Arrest Warrant system is the mutual trust and confidence placed in other countries legal systems. In its simplest terms, countries that are part of the EAW scheme are trusted to have appropriate systems in place, and whilst they may be different to those in another country, they cannot be called into question by the extraditing country.
The changes to the Polish judicial system have led to the European Commission referring Poland to the European Court of Justice. When the Commission is calling into question the integrity of a country’s judicial system, it is not difficult to see why there are concerns about the continued reliance on the principle of mutual recognition.
As in the earlier case, the Irish Court has simply referred the matter to the ECJ for a decision. It has not discharged the EAW, and the practical effect in Ireland is likely to be that all extradition requests to Poland are put on hold, pending the decision of the ECJ.
Whether or not the UK Courts adopt the same approach remains to be seen. Whilst the future status of the ECJ in the UK post-Brexit remains unclear, it would be ironic if the UK Courts chose to defer to the ECJ.
If you require help with an extradition case, please contact John Howey on firstname.lastname@example.org or 020 7388 1658Read More
From June 4th, learner drivers are to be allowed to drive on the motorway. This is to encourage learner drivers to develop an understanding of how to drive on roads that are vastly different from the urban environment that most people learn to drive in.
There will be conditions attached though. Unlike non-motorway roads, where a learner must simply be supervised by someone aged over 21 who has held a full driving licence for at least three years, a learner on the motorway will have to be supervised by a qualified driving instructor, and be driving a dual control car.
There are no plans to introduce motorway driving into the driving test, and it will be left to the instructor and the learner to decide if they want to take advantage of this change.
Younger, inexperienced drivers are significantly more likely to be killed or seriously injured whilst driving than older drivers, and it is to be hoped that providing learner drivers with motorway experience may help reduce those numbers.
In other driving news, more than 26,000 motorists have been caught using a handheld mobile phone while driving in the first year since harsher penalties came into force.
Among these are 500 novice drivers who have had their licences revoked for using their phone behind the wheel in their first 2 years of driving. Drivers who acquire 6 penalty points in their first two years of driving have their licence revoked and have to retake their test.
On 1 March 2017, the penalties for this offence doubled from £100 and 3 penalty points to £200 and 6 points.”
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