If I’m acquitted will the alleged offence show on a DBS check?
An ordinary DBS (Disclosure and Barring Service) check reveals convictions and cautions. An enhanced check, required for many jobs, may reveal information held by the police such as intelligence, arrests, prosecutions and acquittals.
Surely an acquittal shouldn’t be on the check?
This was challenged in Court by “AR”, he was a qualified teacher who had been working as a taxi driver when he was accused of rape.
His defence was that there had never been any sexual contact with the complainant, although she had been in his taxi. He was acquitted. When he applied for a job as a lecturer the enhanced check revealed the acquittal and the details of the allegation.
What did the Court say?
The Court said that in certain circumstances such information could be included on enhanced checks and in “AR’s” case it was correct to do so.
The court said “in principle, even acquittal by a criminal court following a full trial can be said to imply no more than the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”
Who makes the decision?
In the first instance, the police decide whether the information should be included on an enhanced check (although in practice many matters are ‘filtered’ and removed automatically from consideration).
They can disclose non-conviction information that may identify a potential risk to the vulnerable; the test is based on relevance, truth/substantiation and proportionality.
It is not automatic, therefore, that an acquittal would be disclosed, as the circumstances of the acquittal need to be considered and consideration given as to whether the offender may have committed the alleged offence.
It is vital that if there is any positive evidence that the offender did not commit the offence, for example because the complainant admitted lying, that this is brought to the attention of the police.
How can we help?
A decision to include information on an enhanced check can be objected to and representations made to the police and if unsuccessful, can also then be appealed to the Information Governance Unit. We can assist you in formulating these representations. The solicitor who represented “AR” is also considering an appeal against this decision so that the situation may change. We always stay up to date with any changes in legislation or case-law so that we are I the best position to advise you. If you would like to discuss any aspect of your case, please contact John Howey on 020 7388 1658 or email firstname.lastname@example.org uk.Read More
The government has announced its intention to use new roadside breathalysers, in a move that could see a further 6,000 convictions per year for drink driving.
At the moment, the breath test procedure is carried out in 2 stages. A person who tests positive at the roadside will be arrested and taken to a police station for a further test to be administered. This is known as the ‘evidential test’ and is the one that forms the basis of any prosecution decision.
The gap in time between the first positive breath test and the one administered at the police station may be significant enough to ensure that a person blows a negative reading – this is due to falling alcohol levels over time (although in some cases the reverse can also happen).
While ‘back calculation’ tests can be carried out, the evidence base is such that they are seldom used for this scenario. Arguably, therefore, some drink drivers go free.
The legislation allowing for a definitive roadside evidential breath test procedure is already in place, but today the government has announced a competition aimed at device manufacturers, with the aim of ensuring that suitable devices are approved and in use by 2020.
Around 460,000 breath tests are conducted each year, with some 59,000 people providing a positive reading.
Approximately 6,000 people provide a positive reading at the roadside but are found to be under the limit when tested at the police station – this change will see those people prosecuted.
In many instances these will be people who have ‘gambled’ on the quick lunchtime drink or have not allowed quite enough time to sober up from the night before.
The changes will also reduce the scope for so-called ‘loophole defences’, popular due to the complexities of the police station procedure. It is expected that decades of case law will become redundant once the new devices have been rolled out. Experience tells us however, that as one legal challenge closes, another pops up!
The penalties for drink driving are severe, with minimum periods of disqualification, high financial penalties and punishing insurance premiums for many years to come. In many cases, offenders face the loss of employment. ‘One for the road’ often comes at a very high price.
How can we assist?
We are experts in all aspects of drink and drug driving law. This is one of the most complex areas of criminal law, and early advice should be sought in order to achieve the best outcome. Contact John Howey on 020 7388 1658 or email@example.com.Read More
The Sentencing Council has recently published new guidelines for judges and magistrates for when they are sentencing offenders who are in breach of a court order. The guidelines provide a clear approach which will mean a tightening up of the way courts deal with offenders who have not complied with a wide range of orders such as suspended sentence orders, community orders, restraining orders and sexual harm prevention orders.
It is the first time there have been comprehensive guidelines setting out a consistent approach for courts to use and they will help ensure that if an offender breaches a court order, they will receive an appropriate penalty.
What breaches are covered by the guideline?
- Breach of a Community Order
- Breach of a Suspended Sentence Order
- Breach of Post Sentence Supervision
- Failing to Surrender to Bail
- Breach of a Protective Order (restraining and non-molestation orders)
- Breach of a Criminal Behaviour Order and Anti-Social Behaviour Order
- Breach of a Sexual Harm Prevention Order and Sexual Offence Prevention Order
- Failing to Comply with Notification Requirement
- Breach of Disqualification from acting as a director
- Breach of Disqualification from keeping an animal
When does the guideline come in to force?
The guideline will come into effect in courts on 1 October 2018.
Is there a change in approach?
It is likely that the courts’ will get tougher when dealing with breaches. Courts are required to follow guidelines and these guidelines closely reflect legislation and define more clearly appropriate court responses to breaches.
For example, in relation to suspended sentence orders, legislation states that they must be activated – i.e. the offender will be sent to prison – in the event of a breach unless it would be unjust to do so. The guideline gives clearer guidance on this consideration, and offenders will now not get opportunities to avoid their sentence being activated. For activation to be considered to be unjust, there would need to be new and exceptional circumstances – not present at the time the order was imposed – that prevented them from complying with the order. This might involve for example the offender taking on caring for a disabled relative which greatly affects their ability to comply with an unpaid work requirement.
The guideline also covers breaches of orders imposed to prevent particular behaviour or protect individuals or groups from it, such as sexual harm prevention orders and restraining orders. The guidelines prompt courts to look at an offender’s motivation and intention in committing a breach to assess the seriousness of the breach. The guidelines also instruct courts to look at any harm caused, and for the first time in a guideline, the risk of harm being caused.
Including a focus on risk of harm for such breaches helps ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public, without any actual harm needing to have occurred. This could include for example a sex offender who fails to comply with notification requirements with the intention of evading detection in order to commit further offences.
Sentencing Council member Julian Goose said: “Court orders are there to protect individuals and the wider public from particular types of offending or continuing criminal behaviour by offenders. Making sure that offenders comply with court orders is crucial in reinforcing public confidence in sentencing. Where offenders do not comply, the public have a right to expect that this is properly addressed by the courts. We are giving courts clear guidance on what action should be taken against those offenders who ignore court orders so that they are dealt with robustly and consistently.”
Will more people go to prison?
The Sentencing Council conducts research to assess the impact of its guidelines on future sentencing practice. This is a difficult task and the findings are subject to many caveats, however, the following pattern emerges:
Protective orders: ‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. There are two exceptions which may lead to higher sentences for some breaches of a restraining/non- molestation order.’
Criminal Behaviour Order: ‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. The exception is for the most serious breach cases that fall in categories A1, A2 and B1, where there has been an extension to the category ranges, and also at the bottom of the distribution where there may actually be a reduction in sentence severity.’
Sexual Harm Prevention Order/SOPO: Insufficient data.
Breach of notification requirements: ‘A review of transcripts of cases has confirmed that current guidance is not considered adequate by sentencers to address offences falling within the top end of seriousness. The new guideline is more prescriptive and as a consequence it is possible that there may be more sentences at the top end of the guideline range.’
Suspended Sentence Orders: ‘…it has not been possible, (and it is not advisable), to calculate any informative or realistic estimate of the guideline on sentencing practice or the subsequent impact on prison or probation services.’
Breach of disqualifications: ‘…any potential impact would be minimal.’
Failing to surrender to bail: ‘The new wording and format of the guideline regarding consecutive sentences is considered to be in line with the existing guideline, and therefore is not anticipated to have an impact on prison or probation resources.’
In our experience sentencing guidelines often do lead to unintended rises in sentence length, possibly due to a lack of understanding, something our advocates are acutely aware of.
How can we help?
If you need further advice in respect of any potential criminal matter please contact John Howey on 020 7388 1658 or email firstname.lastname@example.org
Many defendants who appear in the Magistrates Court receive a fine, particularly for road traffic offences. In the Crown Court, while a fine is not the most common punishment meted out, when they are imposed they tend to be very large.
Do I have to pay the fine all at once?
Sometimes a court will order full payment (and may give a period of time for this to be completed), but in many cases, the court can order that you pay in instalments, usually weekly or monthly.
You will not be given time to pay (and can be sent to prison straightaway if a fine isn’t paid) if:
(a) in the case of an offence punishable by imprisonment, you appear to the judge to have sufficient means to pay straightaway;
(b) it appears to the judge that you are unlikely to remain long enough at an address in the UK to allow the payment of the fine to be enforced in other ways; or
(c) at the same time that the fine is imposed, the judge sends you to prison.
What happens if I do not pay?
If you wilfully refuse to pay the fine, and all other enforcement options have been exhausted, you will be ordered to serve the default term in prison. That can vary from 7 days for a fine of up to £200 to 10 years where the fine is more than £1 million.
Before you get to that point, bailiffs will have become involved. They can seize property belonging to you to the value of the fine. They also add their own charges, which are often more than the original fine.
It is therefore very important that you make contact with your solicitor if your financial circumstances change and you are unable to pay a financial penalty. It is always better to try and resolve difficulties earlier than wait for enforcement proceedings to commence.
I would sooner serve the time than pay the fine, is that possible?
Yes, and no!
If you do not pay, then you will go to prison.
However, this does not extinguish the penalty; if the authorities later find that you have the means to pay the fine, action can still be taken to recover the monies.
How we can assist
The law concerning non-payment of fines and other financial penalties is complicated. This article is intended to give only a very brief overview of the issues involved.
If you have any concerns or simply to discuss any aspect of your case, please contact John Howey, on 02073881658 or email@example.com
Not everybody wants to be famous for 24 hours. But if you are over 17 years of age and accused of an offence, you may well find yourself in the newspapers or online. These days, press reporting via social media can happen very quickly and it is often one of the things not thought about by those facing criminal proceedings.
There are some restrictions though. Anyone aged 17 or under will generally first appear in the Youth Court. There are strict rules that prevent the publication of the name, address, school or any other matter likely to identify a person under 18 who is a victim, witness or defendant in a youth court. This restriction can be lifted in certain circumstances, usually only for very serious offences; we can advise you and oppose any such application on your behalf if appropriate. If a youth appears in an adult court the prosecutor will apply for an order to prevent the naming of a youth. In civil proceedings, such as for an anti-social behaviour injunction, reporting restrictions do not apply.
There is an automatic reporting restriction that prevents the identification of any teacher who is alleged by a pupil at the same school to have committed a criminal offence against the pupil. This restriction ends when the teacher is charged or summonsed to court and can be varied or lifted.
Victims of sexual and a limited number of other offences have lifetime anonymity.
Reports of certain hearings at court may only include the name of the defendant and the offences he faces. This includes allocation and sending hearings in the Magistrates’ Court, preparatory and pre-trial hearings in the Crown Court. Once a trial is underway, you can expect to see reports of the entire proceedings, unless a Judge orders otherwise.
Discretionary reporting restrictions
Although an application may be made to restrict reporting of a defendant’s name any discretion has to be considered with care, such restrictions are not common.
An example of where an application may be appropriate is for a defendant who is in the witness protection programme (used recently in relation to John Venables, the killer of James Bulger).
For proceedings that are not in the youth court, there is a discretion to impose reporting restrictions in respect of a victim, witness or defendant under the age of 18. The court would need to be satisfied that the welfare of the child outweighed the strong public interest in open justice. There is a similar discretion for adult witnesses if their evidence would suffer if they were named as a witness.
Will the press be in Court?
Members of the press can sit in on hearings in any court, including the youth court, unless they are specifically excluded, but this would only be in rare and particular circumstances.
The general principle is that justice should be open and administered in public. Even if the press is not present, this does not mean that your case will not be reported.
Local reporters sell stories to other newspapers, so do not assume that just because you appear before a court away from where you live, your own local press will not be aware of it.
How we can assist
The law in respect of reporting restrictions is complicated, and breach of a restriction is a criminal offence for individuals as well as members of the press. This article is intended to give only a very brief overview of the issues involved.
Press reporting is one of the issues that you need to consider early on in the criminal process, particularly if your case is likely to attract publicity.
You will need to consider the effect that the proceedings may have on others, particularly children, and how you might deal with that.
If you have any concerns or simply to discuss any aspect of your case, please contact John Howey on 02073881658 or firstname.lastname@example.orgRead More
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
To discuss any aspect of your case please contact John Howey on 02073881658 or email@example.comRead More
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.
To discuss any aspect of your case please contact John Howey on 020 7388 1658 or firstname.lastname@example.orgRead More
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 email@example.comRead 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.
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.
To discuss your case contact John Howey, on 020 7388 1658 or email@example.comRead More