The Civil Contingencies Act 2004 confers a power to make regulations if an ‘emergency’ has occurred or is about to occur. In other words, a power to declare a state of emergency and make regulations to deal with it.
With all of the Brexit uncertainty remaining, there has been talk of serious civil unrest in the event that Brexit does not go ahead as planned on March 29th. That could meet the definition of emergency within the Act. So, what are the powers?
‘Emergency’ means an event or situation which threatens serious damage to human welfare or the environment in the UK, or war or terrorism which threatens serious damage to the security of the UK.
An event or situation threatens damage to human welfare if it involves, causes or may cause:
- loss of human life;
- human illness or injury;
- damage to property;
- disruption of a supply of money, food, water, energy or fuel;
- disruption of a system of communication;
- disruption of facilities for transport;
- disruption of services relating to health.
The conditions for making emergency regulations are somewhat vague with a wide discretion; there are three conditions to satisfy:
- An emergency has occurred, is occurring or is about to occur
- It is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency
- The need for provision referred to in (2) is urgent.
Emergency regulations may make any provision that is appropriate to prevent, control or mitigate any aspect of, or effect of, the emergency. Regulations may prohibit:
- movement to or from a specified place;
- assemblies of specified kinds, at specified places or at specified times;
- travel at specified times;
- specified activities.
Regulations may also:
- enable the requisition or confiscation of property (with or without compensation);
- enable the destruction of property, animal life or plant life (with or without compensation);
- require movement to or from a specified place.
Regulations may also make it an offence to fail to comply with a provision of the regulations or to comply with a direction given or to obstruct a person in the performance of a function under the regulations. Punishment cannot exceed 3 months imprisonment or a Level 5 fine.
Emergency regulations lapse after 30 days, but this does not prevent new regulations being made.
How we can assist
We always keep up to date with legislation and powers such as those listed above. We will be in the best place to advise you should any emergency regulations be made. If you would like to discuss any aspect of you case, please contact John Howey on 020 7388 1658 or email firstname.lastname@example.org.
Last week the Defence Secretary Gavin Williamson suggested a 10-year time limit ( a Statute of Limitations) on the prosecution of soldiers accused of murder during military engagement. This proposal was in response to reports that British soldiers may face prosecution over deaths during the Northern Ireland troubles in the 1970s and 80s.
So, what time limits if any currently apply in England and Wales?
We categorise offences into three groups:
(1) Summary only offences – offences that can only be tried in the magistrates’ court.
(2) Indictable offences (or either-way offences) – offences that may be tried either in the magistrates’ court or the crown court.
(2) Indictable only offences – offences that may only be tried in the crown court.
Summary Only Offences
In general, proceedings must be commenced within six months of the criminal act that is being complained of.
There are however lots of exceptions to this, in particular, affecting welfare benefits, regulatory crime, animal cruelty and immigration cases. These exceptions allow proceedings to be commenced much later (sometimes as much as three years) if certain conditions are met.
There is a great deal of case law concerning the calculation of time limits, and it is common to see offences commenced in breach of the rules. When spotted, this will bring the prosecution to a halt.
With the new Single Justice Procedure for road traffic, railways and other offences, we are seeing an alarming number of cases being charged in breach of statutory time limits – if in doubt, please check with us.
In relation to indictable and indictable only cases, the starting point is that there is no time limit.
It is very common to see offences, particularly sexual offences, prosecuted a great many years after the events complained of.
Historical (alleged) sexual and other offences can create significant difficulties for defendants so many years after the alleged events as it can make defences such as alibi all the more difficult to establish.
As time passes so too does witness memory and recollection, false accounts can seem correct ones, and important evidence can disappear.
The response of the Court of Appeal to these defence complaints is that they are a ‘matter for the jury’ and can be dealt with by directions to the jury to make proper allowance, and of course, only convict if sure.
Wherever possible we look to explore other appropriate avenues to redress the balance.
This may take the form of an application to exclude evidence, or an application to bring the case to a halt (referred to as ‘staying proceedings’) as to continue would amount to an ‘abuse of process’.
Is an abuse of process argument easy to win?
No, an abuse of process argument is notoriously difficult to win. This leads many to believe that they are therefore mostly pointless and, in those circumstances, don’t bother at all.
This is not a strategy that we believe in, and we will always advance arguments where there is a prospect of success.
In Attorney-General’s Reference (No 1 of 1990)  QB 630 the court held:
“Firstly, it is for the defence to prove, on the balance of probabilities, that the continuation of the proceedings would amount to an abuse of the process of the Court and should, therefore, be stayed.
Secondly, stays of proceedings in such circumstances should be the exception rather than the rule, and where the application for a stay is based on delay a stay should be an exception rather than the rule even if the stay could be said to be unjustifiable. Still more rarely should a stay be imposed in the absence of any fault on the part of the complainant. No stay should be imposed unless the defendant shows, on the balance of probabilities, that because of the delay he will suffer serious prejudice to the extent that no fair trial can be held.
The third proposition of law that seems to me to arise from the authorities is that the judge considering an application to stay of this kind may have regard to his powers to exclude evidence, to give appropriate directions to the jury about the delay, and in particular to give directions to the jury about the difficulties which the delay has presented to the defence.
The fourth relevant proposition of law, as it seems to me, is that the judge may also take into account the extent to which a prosecution case depends on contemporaneous documents. The more it does so, the more difficult it will be for a defendant to establish that an indictment will be stayed.
Fifthly, where delay results from the reticence of an alleged victim in reporting an allegation of sexual abuse, one is entitled to adopt an understanding attitude towards the difficulties that can be encountered by such witnesses in making complaints about sexual abuse.”
A seemingly more liberal approach was taken in R (Flaherty) v City of Westminster Magistrates’ Court  EWHC 2589 (Admin) where a delay of 2 years (inactivity of the prosecution) during enforcement proceedings was held to amount to an abuse of process, and in Ali v CPS  EWCA Crim 691 where a delay of 7 years was sufficient to support a stay for abuse where documentary evidence pertinent to the complainant’s credibility had been lost.
How we can assist
We understand the complexities of criminal law and fight hard on your behalf. To discuss any criminal law matter, please contact John Howey on 020 7388 1658 or email@example.com for immediate assistance.
In straitened financial circumstances, it can be tempting to consider purchasing counterfeit money. While the price of such ‘currency’ fluctuates widely, it is often as low as 25% of the face value, making it a tempting proposition.
State currency producers spend millions each year on devising and improving security safeguards, and that counterfeit currency can still be passed off for real reveals something of this hidden world of criminality.
To produce high-quality counterfeit currency requires an investment in expensive print technology and in the main the people responsible for such enterprises are sophisticated and organised criminal gangs, using fake money sales to finance illegal drugs, weapons and trafficking activities. It is this link to organised crime that requires courts to pass deterrent sentences on those caught.
The circulation of counterfeit currency is also a threat to the broader economy.
The Potential Consequences
Non-custodial sentences are almost unheard of, even for the use of a single note or coin.
In Corcoran  EWCA Crim 2750 where a single £50 note was passed, a sentence of 6 months imprisonment was imposed by the Court of Appeal (following a guilty plea).
In Miller  EWCA Crim 257, 2 years imprisonment was reduced to 15 months imprisonment. Miller passed 3 counterfeit £20 notes, 3 more were found in his possession.
The Court of Appeal has stated:
“We observe, as other constitutions of this court have done on previous occasions, that in view of the potential harm to the United Kingdom economy an immediate custodial sentence would almost invariably be required in cases such as this. However, its term will depend upon the
factual circumstances of the instant case. One of the most important factors will be the number of counterfeit notes involved, which will give some indication as to the proximity of the offender to the source of the notes.”
The maximum sentence for tendering counterfeit currency is ten years imprisonment.
For those involved in the production of notes or coins, severe sentences typically follow, and a court may also consider making a preventative order (e.g. Karra and Karra  EWCA Crim 2282).
In Crick  3 Cr App R (S) 275 the court observed:
“Coining is a serious offence. It was rightly treated as such by the learned judge, who correctly took the view that it called for an immediate custodial sentence. It must, however, be recognised that not all such offences are of the same gravity. At one extreme is the professional forger, with carefully prepared plates, and elaborate machinery, who manufactures large quantities of bank notes and puts them into circulation. A long sentence of imprisonment is appropriate in such a case. Here the offence is at the other end of the scale. The tools used to make the blanks were primitive, and were not acquired specially for the purpose; the techniques used were amateurish, and there was little real attempt to make the blanks a facsimile of a 50 pence piece. The coins were not, and could not have been, put into general circulation.”
How We Can Assist
If you require advice concerning any criminal law matter, then please contact John Howey on 020 7388 1658 or firstname.lastname@example.org for timely expert advice.Read More
The short answer is: maybe.
Section 45 of the Modern Slavery Act 2015 provides a defence to specific criminal charges where it is shown that they were committed under a compulsion due to slavery or exploitation (for over-18s) or as a direct consequence of slavery or exploitation (for under-18s).
The latter test, for children, is less difficult to establish. It is a defence similar to duress.
It can, for example, be used for drugs offences committed as part of a ‘County Lines’ drugs ring.
What else is modern slavery a defence to?
The modern slavery defence can be used for any criminal offence not listed in Schedule 4 of the Modern Slavery Act 2015.
It can’t be used for serious crimes like murder, manslaughter, kidnapping, piracy, serious violence, firearms offences, robbery, burglary, arson, criminal damage, most sexual offences, or modern slavery offences themselves. There are other offences to which the defence does not apply.
It can be used as a defence to any other crime. It is used for victims of ‘County Lines’ drugs offences but also applies to most immigration offences, minor assaults, theft, or conspiracy to do any of these things. Anyone who is trafficked or exploited can potentially benefit from it.
Children may be exploited for a variety of reasons by gangs and used to carry and supply drugs. Children who are particularly vulnerable are often targeted, and they may feel that they can’t tell anyone in case they are arrested and punished.
What needs to be proved?
The defence requires several things, depending on a person’s age. In both cases, they need to be a victim of slavery or exploitation.
Those over 18 rely on s.45(1), where they are not guilty if:
1) The crime is committed because they are made to do it
2) They are made to do it for some reason connected to the slavery or exploitation
3) A reasonable person, with the same characteristics, would not have had a realistic alternative in that situation.
A person under 18 relies on s.45(4), where they are not guilty if:
1) The crime is committed as a result of the person being or having been in the past, a victim of slavery or exploitation, and
2) A reasonable person, with the same characteristics, would have done the same.
The defence for under-18s is less difficult to establish, reflecting the increased vulnerability of children.
A person has to raise enough evidence for it to be possible that they are a victim of slavery of exploitation within the meaning of the Act. The prosecution will have to disprove that beyond a reasonable doubt.
If they cannot, a person then has to show it’s possible that the offence was carried out either under a compulsion relevant to (over-18) or as a direct consequence of (under-18), that slavery or exploitation. This, again, will have to be disproven beyond a reasonable doubt.
If the prosecution cannot disprove either of these things, then the defence succeeds.
How can we help?
Modern slavery cases are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.
We are experts at dealing with vulnerable clients and children, including many victims of exploitation by ‘County Lines’ drug gangs.
This is only a general overview of the law. For in-depth advice, call John Howey on 020 7388 1658 or email email@example.com to get in touch and discuss your case.
The government has announced a national rollout of GPS electronic tagging which will mean 24/7 location monitoring of those wearing the tag.
The tag is now available in three Probation areas; the North West, Midlands and North East. Location monitoring will go live in the South East, South West and Wales by April 2019.
There will also be a pilot in London to monitor offenders released from prison for knife-related offences.
The rollout follows a 15-month pilot in 3 areas and an independent process evaluation of the GPS location monitoring pilot has informed the rollout process.
How the GPS tag works
The tag remotely captures and records information on an individual’s whereabouts at all times. The tag receives location signals from satellites and then communicates location data via a mobile phone network to a case management system.
Who is the tag for?
The tag is for individuals who would benefit from their whereabouts being monitored in the context of violent offences (including domestic violence), harassment, gang crime, football-related offences and multiple theft offences. An assessment will take place on the basis of risk level, previous offending, motivation to change, ability to manage the tag and other sentence requirements. In the pilot scheme, those without a fixed address or with serious identified mental health or learning disabilities were not suitable.
In particular, it is for:
- Individuals on court-imposed bail who would otherwise be remanded in custody;
- Offenders given a suspended sentence order or community order who would otherwise have been given a short custodial sentence;
- Offenders on HDC where risk could be managed more effectively by a GPS tag than a radio frequency (curfew) tag;
- Offenders not complying with licence conditions where enforcement action was being considered and offenders being considered for re-release after recall; and
- Offenders on a life sentence or IPP being considered for release by the Parole Board.
In respect of court-imposed bail, individual police forces can choose to roll out the service as soon as it is available in their region, so even if you are in one of the newly introduced areas this may not be an option for you yet.
What is the tag for, are there any benefits?
Electronic tagging is said to support effective management of offenders and those on court bail in four ways:
- Offender rehabilitation;
- Facilitating risk management;
- Informing decisions about whether a wearer should be recalled to custody or court
- Providing evidence to exonerate or link a wearer to a crime.
A benefit is seen in the more detailed information that is received from the monitoring centre in respect of non-compliance or breach. This provides more nuanced intelligence about behaviour to enable informed decisions on action to be taken over a breach or non—compliance. Rehabilitation is supported as access is gained to historical data as to how the wearer spends his time which helps inform discussion in relation to lifestyle and behaviour and identify potential concerns.
In addition to relieving pressures of other rehabilitative services, there is an obvious benefit in the safeguarding of victims.
Location monitoring can be used to enforce an exclusion zone from an area or specific address; the tag will vibrate to remind the wearer if they are in a prohibited area. A restriction could be imposed from going within a certain distance from a given point or address of a victim or known criminal associate. The tag can also be used to enforce attendance at specific activities or appointments, as well as stand-alone monitoring and/or a curfew.
Are there any concerns to be addressed?
The review that followed the pilot identified a number of potential issues that should be addressed before a national rollout. These were gaps in the infrastructure, adequate processes being in place to support effective information sharing, staffing levels, a lack of detail in reports and interpretation of the information, delays in notification of breaches and problems with the daily requirement for charging of the tag.
How can we help?
It is hoped that the potential issues outlined above have been addressed prior to the rollout, but as with anything new, there may be teething problems. If this affects you and your tag, we can help you. We can advise you whether you would be considered for such monitoring and/or whether it is appropriate in your case.
Should you wish to discuss any aspect of your case, please contact John Howey, on 020 7388 1658 or firstname.lastname@example.orgRead More
Sentences imposed for the offence of causing death by dangerous driving regularly cause controversy.
In a recent case His Honour Judge Jeremy Richardson QC was faced with the task of sentencing 3 offenders for their part in causing the death of 4 people, and seriously injuring 3 others. The main offender Elliot Bower received a total prison sentence of 11 1/2 years.
The offence of causing death by dangerous driving carries a maximum prison sentence of 14 years, but what happens if 4 deaths are caused during a single incident, does the total rise to a maximum of 56 years?
The answer to that question is no, the maximum remains at 14 years.
There is nothing wrong in principle with consecutive prison sentences and had the defendants committed 4 offences over 4 days, causing one death on each occasion, the theoretical maximum open to the Judge would actually have been 56 years (i.e. 4 x 14 years). So, why not in this case?
The Judge was obliged to follow the case of R v Jaynesh Chadusama  EWCA Crim 2867 which led to the Judge observing:
“I am compelled to take 14 years imprisonment as the maximum sentence open to me where multiple fatalities arise from a single incident of dangerous driving.”
The Judge did, however, have the following to say, which indicated his general unease as to the state of the law:
“Before passing sentence, I wish to make this observation. It is my intention to refer these sentencing remarks to the Secretary of State for Transport. I am aware that HM Government has embarked upon a review of extant road traffic legislation including sentencing. It is not for me to recommend changes in the law. I simply invite those who have that responsibility, namely the Secretary of State, to consider the following point.
It may be worthy of consideration whether a court, when there are multiple deaths arising from a single episode of dangerous driving, particularly when the dangerous driving is of an exceptionally serious kind – as in this case, should have power to impose a higher level of custodial sentence than would be permitted by the current law.
I merely call this case to the attention of the Secretary of State for consideration.
It is not for me to make this observation, but there may be some who feel that Parliament may wish to revisit the issue of the powers available to a court when sentencing in an exceptionally serious case of this kind. I repeat what I said earlier – the sentence I pass today is governed by the law which is operational today. I am bound by that law and I shall pass sentence in accordance with it.”
Will the law change?
The Attorney General in the days following this case indicated that a change in sentencing policy is likely. This will be more easily achieved not by trying to reverse the rule in R v Jaynesh Chadusama, but by simply increasing the maximum penalty available to one of life imprisonment.
It is also likely that we will see increases in other death by driving sentences, and perhaps even a new offence covering the causing of serious injury.
How can we help?
This is only a general overview of the law. For in-depth advice on any criminal law issue, call John Howey on 020 7388 1658, or email email@example.com to discuss your case.Read More
The government has announced that drug detection scanners are being introduced at ten of the “most challenging” prisons. The technology will be used to detect drugs on clothes, paper and mail. It will be able to detect otherwise invisible traces of substances that have been soaked into clothes or letters in an attempt to bypass normal security.
The prisons in question are part of the “10 prisons project” and have struggled with acute problems including high drug use, violence and building issues.
The prisons in question are Hull, Humber, Leeds, Lindholme, Moorland, Wealstun, Nottingham, Ranby, Isis and Wormwood Scrubs.
The introduction of these scanners is the latest stage of the project, and various measures have already been implemented. This includes sniffer dogs, extra searching staff and specialist staff. X-ray scanners are also planned, and one has already been installed at HMP Leeds.
What will happen if drugs are found?
The staff have been trained in the handling and preservation of evidence, a positive result will lead to further investigation and could lead to sanctions for a prisoner or visitor and also possible criminal prosecution. Any intelligence obtained may be used to assist decisions on which prisoners or cells require further investigation. Sanctions could include closed visits.
What criminal offences could result?
It is a serious offence to bring, throw or otherwise convey (by post for example) any “List A” article into or out of prison. All controlled drugs are List A articles, and while it is an offence to take other items into prison, this article is concerned with drugs.
Drugs are a huge issue in prisons that are said to create a cycle of violence. In particular psychoactive substances can cause aggression, self-harm and trap prisoners in drug-debt.
The scanners and other measures aim to improve detection rates and enhance security procedures. Reducing the quantity of drugs in prisons should reduce the eve of violence and ultimately lead to more rehabilitation so, therefore, less re-offending.
What sentence can be imposed?
This offence is one that is so serious it can only be dealt with at the Crown Court, and custodial sentences are usually imposed, even for offenders of previous good character.
Examples of sentences imposed are; sixteen months for a small amount of cannabis, 28 months for small amounts of diamorphine, cocaine and cannabis, 4 months for Subutex.
It is also an offence for a prisoner to encourage someone to bring in drugs for him, in the case of R v Cousins 14 months imprisonment was imposed for incitement to supply in these circumstances.
How can we help?
We have vast experience of dealing with drug-related offences from the police station to representation at the Crown Court. To discuss any aspect of your case, please contact 020 7388 1658 or firstname.lastname@example.org
The big news story of the weekend was the surprising news that the Prisons Minister, Rory Stewart, is considering whether to abolish the power to impose short prison sentences, those of 6 months or less.
Arguing for the need for reform, Mr Stewart said: “You bring somebody in for three or four weeks, they lose their house, their job, their family, their reputation.
“They come (into prison), they meet a lot of interesting characters (to put it politely) and then you whap them on to the streets again.
“The public are safer if we have a good community sentences… and it will relieve a lot of pressure on prisons.”
Campaigners such as the Prison Reform Trust, have long argued that short sentences are seen as ineffective, allowing little if any time for rehabilitation and causing massive disruption to offender’s lives, resulting in even higher rates of repeat offending.
Supporters of the shorter sentence point to the salutary effects of a ‘short, sharp shock’ and community respite from offending.
This is one of those debates where there is at least some evidence to support all viewpoints.
But it does beg the broader question of what prison is for. Is it to deter, punish, rehabilitate, something else, or a combination of things.
Once we work out what we seek to achieve by imprisonment, the question then to be asked is, does it work?
Take a case in point also reported this weekend – two brothers imprisoned for three months following a conviction for perverting the course of justice (trying to evade penalty points for a road traffic offence).
Did imprisonment deter them? Clearly not. Will it punish them? The answer to that is clearly yes, but if they then lose their jobs and homes, is it disproportionate? Could we have imposed an altogether different and more worthwhile punishment, such as unpaid work in the community?
The answer to these and other questions concerning penal policy have been debated for a very long time, and traditionally, political parties have avoided any debate that has a flavour of being ‘soft on crime’.
So, it is refreshing to see a government minister willing to grapple with these complex issues, for the greater good.
Any change will require legislation so should not be expected for another 12 months or so, but in the meantime, it does allow advocates an opportunity to debate these issues with sentencing judges.
Maybe, just maybe, even the introduction of this debate might save some defendants from unnecessary and damaging short prison sentences. We shall certainly try.
If you have a criminal case coming up, please contact John Howey on 0207 388 1658 or email@example.comRead More
Was it an offence to accuse Anna Soubry of being a Nazi whilst she was broadcasting on Sky News?
Potentially, is the answer.
The Public Order Act 1986 contains the most likely candidates for any prosecution, in sections 4, 4A, and 5.
These sections deal with ‘lower level’ public order offences.
What are those provisions?
Section 4 is also known as ‘threatening behaviour’, and sections 4A and 5 are both types of ‘disorderly behaviour.’ Section 4 is the most serious, with section 5 the least serious.
The actions of the protestors during the interview, and then later on the street, might be one of these offences.
Which offence is it?
It will be for the Crown Prosecution Service to decide which to charge, and the Court to determine whether the people are guilty. The two behaviours could be charged together, individually, or not at all.
It needs to be remembered that the prosecution will be considering not only the fact that Miss Soubry may have been affected by the behaviour, but also other members of the public around the parliamentary estate.
What about the shouting?
That seems like it might fall under either section 4A, or section 5.
Section 4A says that a person is guilty of an offence if he uses threatening, abusive, or insulting words or behaviour and causes harassment, alarm or distress.
He also has to intend to cause a person harassment, alarm or distress.
Section 5 says that a person is guilty of an offence if he uses threatening or abusive words or behaviour within the hearing or sight of a person likely to be caused harassment, alarm or distress.
The critical difference is the intention of the person shouting the words.
Section 5 also doesn’t require any harassment, alarm or distress to actually be caused, just to be likely to be caused.
And the behaviour on the street?
That could fall under either of the above, or it might be the more serious section 4.
Section 4 says that a person is guilty of an offence if he uses threatening, abusive or insulting words or behaviour towards another person.
He must also have the intention to cause that person to believe unlawful violence will be used against them, or to do it in a situation where that person is likely to think that violence will be used against them regardless of intention.
I keep reading that swearing at the police is not a crime? Why is an MP different?
A Daily Telegraph report of a 2011 case has re-emerged on social media in the last few days. This report claimed that a High Court decision involving a man named Denzel Harvey meant that it was no longer illegal to swear at a police officer. In this case, it was said that Mr Harvey had sworn at officers who wanted to search him. Crucially, the officers did not say that they felt harassed, alarmed or distressed.
In this particular case, the High Court concluded that there was no evidence that these particular officers had been caused harassment, alarm or distress, or were likely to have been. Although the Judge pointed out that police officers hear such words all the time, he went on to say;
This is not to say that such words are incapable of causing police officers to experience alarm, distress,
or harassment. It depends ……….. on the facts.
What if I shouted at Anna Soubry?
Each public order offence is different, and each case is too. This is a general overview of the law.
Over the last few days we have seen definitive opinions on this subject, on both sides of the line.
In our view this rush to judgement is somewhat premature, all public order offences need to be seen in context with the full facts carefully investigated.
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.
A suspended sentence is a term of imprisonment that is suspended, so that you do not go into custody immediately and 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 and 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 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 and consider a 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 similar to this 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 the 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 you may be fined for the breach, made subject to further or more onerous requirements, or the operational period may be extended.
We can provide advice on possible sentence, representation for any offence from the police station through to sentence 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 firstname.lastname@example.orgRead More