The law of self-defence is again in the spotlight following the case of 78-year-old Richard Osborn-Brooks who was briefly investigated after the fatal stabbing of a burglar who entered his property.
Mr Osborn-Brooks woke in the early hours to find two men in his house and stabbed one of the intruders in the upper body, resulting in death.
So, what are your rights when dealing with an intruder?
Can I Defend Myself or my Family From Attack?
You do have the right to use reasonable force to defend yourself.
There is a mix of statutory and common law provisions that provide for self-defence.
Section 3 of the Criminal Law Act 1967 provides:
“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”
The government, with much fanfare, enacted section 76 of the Criminal Justice and Immigration Act 2008, to provide for a so-called ‘householder defence’. Also, case law (common law) also defines the scope of this defence.
What does self-defence mean?
In Palmer  AC 814 the court stated:
“In their Lordships’ view the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction.”
In Ray  EWCA Crim 1391 the court went on to consider the amendments made by the Criminal Justice and Immigration Act, and the following principles emerge:
- The jury must first establish the facts as to what happened.
- Then the jury must decide whether, in those circumstances, the degree of force used was reasonable.
- In determining the question of whether the degree of force used is reasonable, in a householder case, the effect of s. 76 (5A) [of the CJIA 2008] is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self-defence is not made out.
- If the degree of force was not grossly disproportionate, then the effect of s.76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force. The jury are in such a case, where the defendant is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable.
It can be said therefore that the statutory provisions have slightly refined the common law so far as householder cases are concerned in that a degree of force used that is disproportionate may nevertheless be reasonable. In a non-householder case the position is different; in such a case the degree of force used is not to be regarded as reasonable if it was disproportionate
The Judge should be very careful when summing-up to ensure that a jury is aware of the special feature of householder cases, in Ray, the court stated:
“It nevertheless may not always be easy for a jury readily to appreciate the task that faces them in a householder case. It is therefore important that when summing up in cases where the householder’s defence is raised the judge gives some colour to the issue of self-defence which arises. It may be helpful to explain to the jury in general terms that Parliament has conferred a greater latitude in cases of a householder in his own home, for reasons they will doubtless readily understand. It can be pointed out that what might be an unreasonable degree of force used when confronting an aggressive individual in a club might not be so when used by a householder confronting an intruder in his own home. That is why it is particularly important that the jury assess the defendant’s actions by reference to the circumstances in which he found himself and as he believed them to be – a point that can then be illustrated and expanded in the summing up with the detail appropriate to the case. However, it must of course be made clear to the jury that the use of force that is grossly disproportionate (completely over the top, in ordinary language) can never be reasonable.
It would, in our view, generally be helpful also to explain to the jury in such a case in everyday language the dilemma that would confront any householder when an intruder enters his or her house.
The householder is entitled to some latitude as to the degree of force used; if the jury do not regard the degree of force as being completely over the top they need carefully to examine all the circumstances in determining whether the prosecution have proved that the degree of force used was unreasonable. It is this context that differentiates the householder case.
It would often be helpful, for that purpose, to spell out the kind of circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable. These might, for example, include the shock of coming upon an intruder, the time of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a knife or stick that would lawfully be to hand in the home), the conduct of the intruder at the time (or on any relevant previous occasion if known to the defendant). Each of these might lead to the view that what was done, such as using a knife, which otherwise in a different context might be unreasonable, in the circumstances of a householder coming on an intruder might, in all the circumstances of such a case, be reasonable.
Another useful illustration may be the question of retreat. S. 76(6A) makes clear that there is no duty to retreat; the possibility of retreat is but a factor in determining whether the degree of force used was reasonable. If there is a threat of confrontation in the street, then the option to retreat may be important in determining whether the use of any force was reasonable. In the case of an intruder in the home, however, the option of retreat is unlikely to arise in many cases and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable.”
Is this a straightforward law to understand and apply?
No, not really!
But it essentially boils down to this – if you do what you genuinely believe to be necessary to defend yourself or others from attack, the law will provide a defence. Your response will not be judged to a nicety, and the case law makes very clear that a degree of latitude will be given, due to the particular circumstances that you would face.
The case of Mr Osborn-Brooks is tentative support for the rebalancing of law in this area having worked well.
How we can assist
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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.
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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.
For help with any criminal law related matter please contact John Howey, on 020 7388 1658 or firstname.lastname@example.orgRead More
A new domestic abuse sentencing guideline has been published today (22 February), giving courts up to date guidance that emphasises the seriousness of this offending.
What is domestic abuse?
There is no specific crime of domestic abuse – it can be a feature of many offences, such as assault, sexual offences or harassment. The guideline aims to ensure that the seriousness of these offences is properly taken into account when such offences are being sentenced and that sufficient thought is also given to the need to address the offender’s behaviour and prevent reoffending.
Are there existing guidelines?
The new guideline replaces a domestic violence guideline which was published in 2006. A great deal has changed since then in terms of societal attitudes, expert thinking and terminology. Guidance for courts was therefore in need of revision to bring it up to date. ‘Domestic abuse’ is now the term used, rather than ‘domestic violence’, to reflect that offences can involve psychological, sexual, financial or emotional abuse as well as physical violence.
When is the new guideline in force?
The guideline will apply to all offenders aged 16 and older sentenced on or after 24 May 2018.
How does this guideline change things?
The guideline identifies the principles relevant to the sentencing of cases involving domestic abuse, outlines how the seriousness of offences should be assessed and highlights other factors that should be taken into account.
It brings a distinct change in emphasis in relation to seriousness.
The previous guideline stated that offences committed in a domestic context should be seen as no less serious than those in a non-domestic context, whereas the new guideline emphasises that the fact an offence took place in a domestic context makes it more serious.
This is because domestic abuse is rarely a one-off incident, it is likely to become increasingly frequent and more serious the longer it continues and may result in death. It can also lead to lasting trauma for victims and their children.
For the first time, the guideline also includes a reference to abuse which is perpetrated through use of technology, such as email/text, social networking sites or tracking devices fitted to a victim’s car, since these are increasingly common methods by which domestic abuse can occur.
The guidelines recognise that these offences can affect people of all backgrounds and the guideline is also clear that abuse can occur between family members as well as between intimate partners.
Will anything else change?
Yes. In particular, there is now additional guidance on restraining orders, along with new guidance on Victim Personal Statements.
In relation to restraining orders, the guideline now includes additional guidance to assist the court with a renewed focus on keeping the victim safe, particularly for those who continue or resume their relationship with the offender.
The guideline further reminds courts to take any Victim Personal Statement (VPS) into account, but that where there is no VPS, this is not an indication of any lack of harm to the victim.
Sentencing Council member Jill Gramann said:
“Domestic abuse comes in many forms such as harassment, assault and sex offences. The increasing use of technology in offending has meant that it has also evolved in its scope and impact. The new guideline will ensure that courts have the information they need to deal with the great range of offending and help prevent further abuse occurring.”
What factors will a court take into account?
The following list of non-exhaustive aggravating and mitigating factors are of particular relevance to offences committed in a domestic context and should be considered alongside offence specific factors.
- Abuse of trust and abuse of power
- Victim is particularly vulnerable (all victims of domestic abuse are potentially vulnerable due to the nature of the abuse, but some victims of domestic abuse may be more vulnerable than others, and not all vulnerabilities are immediately apparent)
- Steps taken to prevent the victim reporting an incident
- Steps taken to prevent the victim obtaining assistance
- Victim forced to leave home, or steps have to be taken to exclude the offender from the home to ensure the victim’s safety
- Impact on children (children can be adversely impacted by both direct and indirect exposure to domestic abuse)
- Using contact arrangements with a child to instigate an offence
- A proven history of violence or threats by the offender in a domestic context
- A history of disobedience to court orders (such as, but not limited to, Domestic Violence Protection Orders, non-molestation orders, restraining orders)
- Positive good character – as a general principle of sentencing, a court will take account of an offender’s positive good character. However, it is recognised that one of the factors that can allow domestic abuse to continue unnoticed for lengthy periods is the ability of the perpetrator to have a public and a private face. In respect of offences committed within a domestic context, an offender’s good character in relation to conduct outside these offences should generally be of no relevance where there is a proven pattern of behaviour
- Evidence of genuine recognition of the need for change, and evidence of obtaining help or treatment to effect that change
Will I get a longer sentence?
A spokesperson for the Sentencing Council commented:
‘Overall, it is likely that there will be an increase in sentence severity as a result of the introduction of the guideline, however, the guideline emphasises the need to consider the most appropriate sentence to prevent further reoffending and protect victims, which may be a community order.’
How we can help
Many people feel that sentencing is increasingly a mechanistic process, with a danger that guidelines will be rigidly stuck to, and the individual considerations of defendants either ignored or played down. However, case law over the last few years emphasises that courts should be cautious to ensure that this does not happen. All of our advocates are experienced in presenting the best mitigation possible to courts, ensuring the best possible outcome.
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What Happens in Rome, May Not Stay in Rome
Most people know that if you commit a criminal offence in the UK, the police will record details of the offence and any sentence you receive on the PNC (Police National Computer). But what happens if you commit an offence abroad? Will anyone at home ever find out about it? The answer depends on where the offence has been committed.
Offences in the EU
The UK is part of EU Council Framework Decision 2009/315/JHA; this means that if the foreign offence has an equivalent offence in England & Wales which is deemed “recordable”, it will be notified to ACRO (Automating Conviction Requests Office) who will add it to the PNC.
If a link to Scotland or Northern Ireland is identified, such as a place of birth or address, the information will be forwarded to the Scottish Police Services Authority (SPSA) and/or the Police Service of Northern Ireland (PSNI) as well.
Despite this, it is still often the case that offence information is not, for whatever reason, always reported back to the UK.
What is a “recordable” offence?
Where a foreign offence is received by the UK police it will be updated on to the PNC if it is listed as being a “recordable” offence as set out in The National Police Records (Recordable Offences) Regulation 2000.
The Regulation states that recordable offences are those punishable with imprisonment and those specified in the Schedule to the Regulation.
Until 2017, many driving offences committed abroad went unpunished. However, if you commit a safety related offence such as drink-driving, speeding, using a mobile phone while driving, ignoring a red light etc, the DVLA must provide your details to an EU country that request them.
Offences committed outside the EU
If you have been convicted in a country outside of the EU, the conviction details may be forwarded to the UK if you are a UK national. A lot will depend on which country is involved and how committed it is to the exchange of criminal records data, but as outlined below, even if the information hasn’t been automatically supplied to UK police, it may still be requested at a later date.
The UK is part of the International criminal conviction exchange, which enables police forces to easily exchange relevant information.
When a foreign national is arrested in the UK, for the majority of police forces the process of requesting a foreign criminal records check is now automated, taking around 10 minutes to process. If there is a European Arrest Warrant outstanding, that will be revealed by a standard PNC check.
Similarly, even if an offence committed outside of the UK has not been communicated to UK police, a request may still reveal it.
And what about foreign nationals who commit offences in the UK?
The UK will exchange records with foreign police forces in accordance with the above rules. To give you an idea of the popularity of criminal records exchanges, between March and November 2017 ACRO received more than 70,300 requests from EU countries alone.
Competent solicitors will advise you as to the impact of UK convictions if you are a foreign national and will also recognise that checks during criminal proceedings in the UK may reveal convictions from abroad.
This is important as the information could be used as part of a bad character application and may also be relevant to sentencing. Also, it will be important in multi-handed cases to ensure that the full criminal past of any co-defendant has been explored, as this may provide evidence in your favour.
What happens in Rome, or London, or anywhere else for that matter, may be a secret for now, but once criminal proceedings commence it is an altogether different story.
How can we help?
All of our lawyers recognise the International aspects of criminal justice; if you are facing investigation or proceedings for any offence, it is important that you get in touch with us as early as possible so that we can best protect your interests.
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The government this week announced that West Yorkshire Police has signed up to a new identity checking service, allowing fingerprints to be taken via an App.
The new service, already being used in a select number of force areas, with a further 20 going live before the end of this year, will remove the need for suspects to be taken to a police station to check their identity.
It is anticipated that this will reap benefits for frontline officers and suspects alike, freeing up police to continue with other duties and reducing needless detentions.
Police leaders have commented:
“Early examples of the new system in action include a firearms unit, who detained a driver after a short pursuit and were able to identify him as a disqualified driver, despite him giving false details. He was issued with a summons for three offences and his vehicle seized. The armed response unit returned to patrol within ten minutes, and without the mobile fingerprint scanner this could have resulted in the unit being out of action for four hours taking the individual to a custody suite.”
The new service works by connecting a small fingerprint scanner to a mobile phone App. Within seconds of taking a print the suspect’s identity can be checked across the two main police databases, allowing police to then deal with the suspect in the appropriate way.
While this technology has been available for a few years, reduced pricing has now made it affordable enough for a national rollout. Scanners that previously cost around £3,000 can now be purchased for under £300.
Liberty, the leading human rights organisation has been less enthusiastic, commenting that:
“This scheme is part of a pattern of the police using radical privacy-invading technology without proper public consultation or meaningful parliamentary oversight. Much like the facial recognition technology that is increasingly being deployed by police forces, it is being presented to us after the event and with little fanfare and is being made available to more and more officers across the country. In this case, we learned about it via a sneaky gov.uk post early on a Saturday morning.”
Although there are clearly benefits to everyone involved, there remain concerns. Little is known about what will happen to the data after it has been checked; for example, if you are not already on either data base but are stopped and checked, what happens to your data? Will the technology only be used when there is doubt about a person’s identity or will it be used indiscriminately? As with any system there remains the potential for human error, not least when data is being added to the databases.
There are important protections for suspects that are to be found in the Police and Criminal Evidence Act 1984. However, ensuring that these protections are adhered to can be difficult in away from the police station. If you have any concerns about the use of these powers, please contact us to discuss further. Where fingerprint identification is being used evidentially by the prosecution, we always take particular care to ensure that the law has been complied with.
How We Can Help
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On 31st January 2018, regulations bring into force sections of The Criminal Finances Act 2017 dealing with unexplained wealth orders (UWOs), along with various other related provisions. This is the latest in what can often be seen to be a draconian set of powers aimed at interrupting criminal activity by the back door. However, as with other financial legislation, there is a risk that ordinary law-abiding people can find themselves subject to an order.
What are the unexplained wealth orders?
The purpose of this new order is to allow for certain people who obtain property which would ordinarily be beyond their obvious means, to be required to prove that it was acquired lawfully. This is in effect a reverse burden of proof.
Law enforcement agencies often have reasonable grounds to suspect that identified assets of such persons are the proceeds of serious crime. However, they are often unable to freeze or recover the assets under existing provisions in the Proceeds of Crime Act due to an inability to obtain evidence (often due to the inability to rely on full cooperation from other jurisdictions to obtain evidence).
The authorities which may apply for an unexplained wealth order are:
– The National Crime Agency.
– HM Revenue and Customs.
– The Financial Conduct Authority.
– The Director of the Serious Fraud Office.
– The Director of Public Prosecutions.
What to do?
If you are subjected to an order of this kind, you must provide a statement which does the following:
– Sets out the nature and extent of your interest in the property.
– Explains how you obtained the property, particularly how it was paid for.
– Provides details of any settlement if the property is held by trustees.
– Sets out any other information about the property specified in the order.
In addition to a statement, the order may require you to supply documents connected to the property.
Before it can make an order, the High Court must be satisfied that the following criteria are met:
– There is reasonable cause to believe that the person in question holds the property and that it is worth over £50,000.
– There are reasonable grounds for suspecting that this person’s known income (from lawful sources) would not be enough to obtain the property.
– The person in question is a politically exposed person (see definition below) or there are reasonable grounds for suspecting that they are or have been involved in a serious crime or someone connected to this person is or has been so involved.
A politically exposed person (PEP) is someone who is or has been entrusted with prominent public functions by an international organisation, a State other than the UK or another EEA State, a family member of such a person, a close associate or someone connected to them in another way.
Make sure you provide all the information required
It is a criminal offence to knowingly or recklessly make a statement that is false or misleading in response to an unexplained wealth order. Doing so can result in two years’ imprisonment and/or a fine. This offence can be tried in either the Magistrates’ Court or the Crown Court.
Failing to provide the information, in full or part, may prejudice any civil forfeiture proceedings.
In some cases, a UWO will be accompanied by an interim freezing order. This prohibits the respondent to the UWO and any other person with an interest in the property from in any way dealing with the property.
Where the property is thought to be in a country outside the UK, the Secretary of State may forward a request for assistance to the government of the receiving county. This can be a request to prevent anyone in that country from dealing with the relevant property and provide assistance in managing it as required.
We Can Assist
John Howey, Senior Solicitor
Over recent weeks, there have been a number of high profile rape cases involving disclosure, or more accurately non-disclosure, of information obtained by the police during their investigations. In a number of these cases, the evidence has come to light before the trial has concluded, leading to the acquittal of the defendants. In at least one case, an innocent man served a lengthy period in custody, and had already been released, before the evidence came to light and his conviction was quashed.
It may be tempting to think that these are isolated incidents, and limited to sexual offences, but they are not. Even with the current media frenzy over this issue, there are cases going on around the country where exactly the same is happening, day-in, day-out. One such example is a case that we dealt with earlier this month.
Our client has asked that we do not disclose his name, so we will call him D. We will call the girl involved C.
In July 2015, D was 16. C was 15. They had been boyfriend and girlfriend for 3 weeks when C went to D’s flat one evening after school. D’s mum and dad were at home. They went to his bedroom and had sex for the first time. C left shortly afterwards and went home.
She was upset with what had happened. They spent several hours on the phone to each other that night and the following morning. She also spoke with other friends on the phone. The next morning, she confided in her foster mum that she had had sex with D and that she had not wanted it to happen. C went to school and complained that she had been raped. The police were called. During the course of the morning another pupil, a friend of C’s showed one of the teachers a message that D had apparently sent the previous evening. The teacher took a photo of it. The message, in isolation, could have been seen as an admission.
D was arrested 36 hours after the incident. His phone was seized. He was interviewed by the police and accepted having sex with C, but said that she had consented. He was bailed pending further enquiries.
Despite the young age of the parties, no progress was made for some time. In February 2016 D was interviewed again, about a handwritten note found in the rubbish bin at C’s house. This note could be described as a sexual ‘to-do’ list. C denied she had written any of it except the title, and suggested D had written it. D denied ever having seen the piece of paper, or having written it. He agreed to provide some handwriting for analysis.
D was eventually charged in May last year, 22 months after the incident took place, by which time he had turned 18, and fell to be tried as an adult.
When the prosecution papers were eventually served, only C’s second interview was served, dealing with the piece of paper.
This was the first failure of disclosure; we had to chase the CPS for the main interview, containing details of the allegation of rape. We were also not provided with a proper transcript of D’s second police interview.
The communications between D and C were clearly relevant to the case. The Officer in charge of the investigation (OIC) in an unusual move provided a statement in which she stated that she had examined the mobile phones of both C and D, and provided details of an exchange of text messages that she said had passed between them on the day in question. We were also provided with an Excel spreadsheet, described as the download of C’s phone.
Even a cursory examination of this document showed that the phone number that the OIC had attributed to D was not his and that the messages in question were not sent by him or to him. Despite having both phones in her possession, the OIC had provided a statement that was wholly inaccurate and very misleading.
The schedule of unused prepared by the OIC (documents not relied upon by the Crown, but relevant to the investigation) listed just two items; the CRIS (police report) and D’s custody record. One of the two pages of the CRIS that were disclosed included a comment from an officer describing C as ‘not the compelling and honest witness that she first appeared’. A CRIS relating to a previous allegation of sexual assault made by the complainant that was not proceeded with, was also disclosed.
In the usual way, a defence statement was served, requesting a number of items which in our view were plainly disclosable, in particular.
– We asked for service of the phone downloads of the phones belonging to C and D. We were told by the CPS that the D’s phone download ‘has been requested and will be reviewed once it is available’. By this point, 27 months had passed since the offence and the CPS were still not in possession of the download. This means this important evidence had not been reviewed by the CPS when they made the decision to charge a young man with rape.
– The CPS had indicated at an early hearing that handwriting analysis was being done on the list found at C’s house. We asked for the outcome of this. We were told ‘the ‘list’ was not suitable for handwriting analysis and was therefore not completed’.
– The CPS had previously disclosed the existence of medical notes, GP notes, Counselling notes and Social Services records. In response to our request for access to these documents we were told ‘these were considered as part of initial disclosure and relevant entries were disclosed’
The case then came back to Court for a pre-trial review. Amongst the matters raised was the absence of the defendant’s mobile phone download. The OIC was at Court, and she claimed that the disc had ‘caught fire’ during the copying process; the inference was that the phone evidence was no longer available. The prosecution continued to maintain their stance that the other items were not disclosable, so we listed the case for a S8 disclosure application.
When the S8 application came to be heard, it was apparent that neither prosecuting counsel or the CPS had seen, let alone reviewed the social services file. The judge on that occasion ruled that the trial judge would need to consider the application at the outset of the trial.
The trial was listed for January 2nd 2018. On the morning of the trial, Prosecution Counsel took the view that the material had been reviewed (albeit not by him), and there was nothing further to disclose. Fortunately, the trial judge took a different view, and made it clear that it was the prosecutor’s job to review the material and decide what did and what didn’t meet the test for disclosure. Time was allowed for Prosecution counsel to review the social services and school records of C. The school records had to be retrieved from the school because the OIC did not have them. Amongst other information revealed in the days after the trial had actually started, we learnt.
We had already instructed our own handwriting expert to analyse the handwritten note. There were no issues regarding the quality of the sample and she was able to conclude that it was very unlikely that D wrote the sexual ‘to do’ list.
At the trial the CRIS was finally disclosed. It revealed that C’s mum had found the paper in the bin at home, and that as far back as March 2016, the reason given for being unable to do the comparison was because the school had none of D’s work available. Enquiries were apparently being made with C’s school for her books, but C’s mum had said it was ‘clearly’ C’s writing. It was clear that the reason provided by the OIC for their being no analysis was simply untrue.
In her evidence, C continued to maintain that she had not written the document. This raised serious issues regarding her credibility.
C’s phone download
On day 2 of the trial, the OIC provided a statement saying that the download from C’s phone had been provided from the lab that did the work as an Excel spreadsheet, this lab had gone into administration and the original material was no longer available. However, when pushed by D’s barrister, she eventually disclosed that she had a disc, albeit it was “corrupted”. Prosecution and defence counsel took and reviewed the disc which had the full original phone down load for both D’s and C’s phone on it. No explanation was ever forthcoming from the OIC as to why she had lied about the availability of the phone download.
Other failures of disclosure
D’s mobile download
This wasn’t provided until 22nd December 2017. It ran to over 1600 pages. Despite C claiming that their brief relationship had been unpleasant and that she had never been to D’s house, the download revealed daily lengthy conversations taking place between the two parties, and numerous loving text messages being sent. The contents of the messages also suggested that C had been to D’s house on a number of occasions.
There was no record of the message that he had apparently sent on the evening, apologising. There was no record of anything preceding that, or afterwards, that might have put it into context. The records did however show that he had spoken to the person the message was sent to immediately beforehand, which would provide some context for it. That person had declined to provide a statement, and despite speaking to her on a number of occasions, the OIC agreed in evidence that she never thought to ask to look at the witnesses phone to see the context of the relevant and damaging message.
Social Services records
Social Services records eventually disclosed that;
Her mother could not leave her at home alone because she was stealing from her and could not be trusted
The situation at home was so bad that police had been called twice to allegations of assault, once by C and once by her mum. Her mum had asked social services to remove her.
C had told medical professionals just four months before the allegation was made that ‘I lie a lot’, that she had fallen out with her best friend, was struggling at school and stressed about exams. She also describes herself as being impulsive and having difficulty managing her emotions.
As well as other matters referred to above, this disclosed that at the time of the offence C was having difficulty at her foster home and wanted to go back to her mum.
The verdict and some considerations
Fortunately for our client, the jury found him not guilty. However, what was not a particularly complex case had taken over 2 ½ years to be concluded during which a young man had to effectively put his life on hold. The evidential position in this case was very different at the end of the trial to the start of the trial. Had the evidence that was finally disclosed been made known to the CPS pre-charge, then there is a realistic chance that this defendant may never have been charged. Had the CPS properly reviewed the evidence at an earlier stage, they may well have chosen to discontinue the case.
There has been absolutely no publicity about this case, and D wishes it to remain that way. However, what is clear is that the cases reported in the media over recent weeks are not isolated cases, but a reflection on the current problems within the Criminal Justice System.
John Howey, Senior Solicitor
Redemption has always been an important part of our justice system; you do the crime, you do time. Once your debt is paid, you should then be free to start again, without forever being haunted by ghosts of the past.
We all recognise that there must be limits to this principle, so if convicted of murder or rape, you are unlikely ever to be able to expunge the past. But for relatively minor offending, or offending so far in the past to render it irrelevant, one might expect that you could move on.
Before the digital age, moving on was possible, local news was soon forgotten, or people could move away and start again. But now, with the growth of online news and the ability of almost anyone able to publish almost anything on the internet, the picture is different. Powerful search engines such as Google ensure that if the information is out there, there is a method of finding it.
So, to counteract this, people now speak of a ‘right to be forgotten’, and this is where data protection laws are being utilised.
This ‘right to be forgotten’ is not a new concept introduced under data protection laws. The principle was long-ago recognised by the UK Parliament with the Rehabilitation of Offenders Act 1974. That Act provides that after a specified period of time (which varies according to the sentence that was imposed) a person’s previous convictions are regarded as having been “spent”. The underlying rationale is that, for all but the most serious offences, people should not have a lifelong “blot” on their record but should be able to live without that shadow, and the consequences it may have for their employment or other areas of their life. So, the principle of a “right to be forgotten” was recognised in domestic law many years ago, and long before data protection laws came along. Its emergence in the field of data protection simply reflects the significant development in the dissemination of information represented by the Internet.
What does the law say?
As a result of the harmonisation of data protection laws across the EU, the European Court of Justice has jurisdiction to determine issues arising from data protection cases. Courts of the member states of the EU can refer cases to the ECJ for rulings as to the interpretation of the law. One such case – Google Spain SL –v- Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014)  QB 1022 – has become fairly well-known and has been the subject of public debate. It is colloquially known as the Google Spain case. It is the case that first really brought to prominence the notion of a “right to be forgotten”.
Put very simply, the case decided that, after a period of time, certain information about a person (although it may have been accurate many years ago, and may remain so) should not continue to be made available to the public in Internet search results because to do so would infringe the data protection rights of the individual concerned. The right was not absolute. It could be outweighed by other considerations.
The Court explained:
“It must be pointed out at the outset that….processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous.
In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights… Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”
The Right to be Forgotten vs the Right to Privacy
This principle sharply divides public opinion. Concern has been expressed that the right to be forgotten could be misused and might lead, in effect, to censorship of the information that is available on the Internet. Criminal cases are invariably conducted in public. Information relating to people who are convicted of criminal offences may well end up on the ‘public record’, most frequently as a result of newspaper reports of cases that appear in the Courts. Those opposed to the “right to be forgotten” contend that access to this sort of information should not be prevented by restrictions placed on what can appear in the results of Internet search engines.
This is another area of the law in which two human rights come into conflict; the right to be forgotten is a dimension of the right to privacy and it conflicts with the right of freedom of expression (which includes the right to receive as well as to impart information). When disputes like this arise, it is ultimately for the Court to decide where the balance is to be struck in an individual case.
What about the UK courts?
The High Court is soon to decide this issue so far as the UK is concerned.
The Claimants in two cases before the Court (to be heard in February and March 2018) are both individuals (neither is a ‘celebrity’ or politician) who have previously been convicted of criminal offences, but both have now been “rehabilitated” under the Rehabilitation of Offenders Act 1974. One was convicted in the late 90s of conspiracy to account falsely. Over ten years ago, the other was convicted of conspiracy to intercept communications. Both complain in their respective claims that Google is continuing to return, in response to searches of their names, links to information about their respective convictions. Some of the links that are complained about are links to newspaper articles reporting the original criminal proceedings. The Claimants argue that the time has come for them to be entitled to have these entries removed from searches carried out on Google.
What is the High Court likely to say on this issue?
We simply don’t know for sure, but most commentators think that earlier EU decisions are likely to be adopted. But, whichever way the case goes, it is likely, ultimately, to end up before the Supreme Court, so it may be a year or so before we have any clarity.
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John Howey, Senior SolicitorRead More