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 firstname.lastname@example.orgRead 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 email@example.comRead More
In legal shorthand we often refer to section 18 or 20 offences, these refer to specific offences under the Offences Against the Person Act 1861.
What is the difference between section 18 and section 20?
The most serious form of assault (short of attempted murder) is grievous bodily harm (GBH) or wounding.
When the offence is committed with the intention to cause GBH, it is an offence under section 18, and the maximum sentence is life imprisonment. The same offence committed without intent (section 20) has a maximum sentence of 5 years.
For an offence to be committed unlawfully and maliciously, it means that there is no defence such as self-defence, force used for preventing crime, defence of property or another.
There are also some other technical differences between the two offences.
What is GBH?
GBH or grievous bodily harm is really serious bodily harm, so would include broken limbs for example, and it can also include psychiatric injury.
What is wounding?
Wounding is where the skin is broken (either internally or externally).
Section 18, the intent offence
For the more serious offence, an intention to cause serious injury or wounding is required.
A jury needs to be satisfied that the offender intended to cause the harm by considering all of the relevant circumstances, including what the offender did and what he said about it.
What about weapons?
The use of a weapon will make any offence more serious, and will often be evidence of an intent to cause GBH. Weapons include knives, bottles, throwing acid etc. Feet used to kick are also considered to be a weapon, and biting would also be an aggravating feature.
Section 20, without intent
The difference between a Section 18 and a Section 20 offence is that for a Section 20 offence you did not intend to cause the injury. An example would be if you punched someone once and they fall causing a serious injury or wound.
Your lack of intent may be taken from the way in which the assault was committed or your behaviour at the time and immediately afterwards.
What sentence will I get?
For an offence with intent it is almost inevitable that a term of imprisonment will be imposed. The guidelines range from 3 years for a less serious offence through to 16 years for the more serious offences.
Examples of sentences imposed are nine years when a bottle was used to strike the face requiring thirty stitches; nine years also imposed for causing a fractured arm with a baseball bat, knocking down and driving over a police officer, kicks to the head on the floor causing extensive facial fractures.
For offences under section 20 the maximum sentence is 5 years, so a non-custodial sentence is more likely. The guidelines range from a community order to 4 years imprisonment.
How can we help?
The difference in sentencing for an offence without intent means that this issue has to be considered carefully in the context of all of the evidence.
We can advise you whether intent and other offence elements can be proven, and the prospects, if appropriate, of a plea to the lesser offence being acceptable to the prosecution and the court.
The law is complicated and the potential consequences severe, for expert advice, please contact John Howey on 020 7388 1658 or firstname.lastname@example.org.Read More
After a recent spate of assaults involving the use of acids and other corrosive substances, the government has acted to try and curb their use. At the present time around 15 offences per week involve the use of acid and other like substances.
In January 2018, the Home Office announced a voluntary agreement with a number of major retailers in which they made commitments about the responsible sales of corrosive substances. This included not selling products containing the most harmful substances to under 18s. The agreement was developed with the British Retail Consortium and also tested with the Association of Convenience Stores and the British Independent Retailers Association, to ensure that the commitments were proportionate and worked in the retail environment.
The major retailers who have signed up to the commitments are: Wickes, Screwfix, B&Q, Wilko, Waitrose, John Lewis, Tesco, the Co-op, Morrisons, Aldi UK, Lakeland, Asda and Homebase.
On 1st November 2018 new legislation came in to force to further strengthen the controls against possessing corrosive substances.
There are controls in the Poisons Act 1972 on corrosive substances that can be used as poisons or as to make explosives.
Parliament has enacted a statutory instrument which makes sulphuric acid a regulated explosives precursor above a concentration level of 15%.
The effect of this will mean that members of the public will require a licence from the Home Office to be able to import, acquire, possess or use sulphuric acid.
What is the penalty for breaching this law?
If found guilty, the offence carries a maximum sentence of 2 years’ imprisonment.
How can we help?
The law is complicated and the potential consequences severe, for expert advice, please contact John Howey on 020 7388 1658 or email email@example.com.Read More
There are two main offences that are prosecuted in relation to benefit fraud, one involves dishonesty, the other does not.
The dishonesty offence
It is an offence to dishonestly make a representation in order to obtain benefits, for example not declaring that you are working or have savings. This includes a dishonest failure to promptly notify a change in circumstances, as well as making a claim that is dishonest at the start.
The offence without dishonesty
It is an offence to knowingly make a false statement to obtain benefit. Again, this can be in an initial claim for benefits or failing to give prompt notification of a change in circumstances.
What does this actually mean?
The following definitions are given:
- Dishonesty – has its normal meaning in criminal offences, although the lesser offence does not require dishonesty it does require proof of knowingly failing to notify. The test for dishonesty was recently revisited by the Supreme Court and the result may well be that it is now easier to prosecute for a dishonesty related offence.
- Change in circumstances – there must be proof that the offender knew there was a change of circumstances and that the change would have affected a change in benefit.
- Changes in circumstance could include starting to live with a partner, getting a job or a winning the lottery.
- Promptly notify- prompt is to be given its natural meaning and is a matter of fact. It is for the prosecution to prove that it was not prompt. It is therefore essential to explore all of the surrounding circumstances as this may provide a defence, not only mitigation.
Are there other offences?
There are other offences of fraud and false accounting related to benefits that are not covered in this article.
What is the likely sentence?
The non-dishonesty offence an only be dealt with in the Magistrates’ Court and carries a maximum term of imprisonment of 3 months.
The offence involving dishonesty can be dealt with at the Magistrates’ Court or the Crown Court and carries a maximum of seven years imprisonment.
The main factors for consideration in sentencing will be the length of time of the overpayment, the value of benefits overpaid, and whether or not the claim was dishonest from the outset.
A claim that is of high value, over a sustained period and which was dishonest from the beginning is more likely to attract a term of imprisonment.
How can we help?
An investigation into possible benefit fraud often starts with a letter asking you to attend for an interview under caution. The interview is very important; what you say in the interview can be used against you at Court, but it can also lead to an out of court disposal, such as a caution or an administrative penalty, or no action being taken against you. In many cases we are able to attend the interview with you.
You can find out more about how Camden Council deals with benefit fraud here.
What if I have to go to Court?
Prosecutions for benefit offences frequently generate vast quantities of paperwork. We have a great deal of experience in considering such evidence, and our involvement may mean a lesser value is given to the overpayment which can have a direct impact on the potential sentence.
We can also assess any possible defences that may be available to you. Expert advice is crucial if you would like to discuss any aspect of your case, please contact John Howey, on 020 7388 1658 or firstname.lastname@example.orgRead More
The 2015 documentary series Making a Murderer follows the story of two men from Wisconsin whose confessions helped to convict them of sexually assaulting and murdering a woman.
One of the convicted was an impressionable teenager called Brendan Dassey. Dassey’s conviction was overturned in 2016 (confirmed on appeal in 2017) on the basis that his ‘confession’ to the murder was coerced by police officers who exploited his vulnerable nature.
What is the law in the England and Wales?
Provisions in the Police and Criminal Evidence Act 1984 allow courts to reject confessions of this kind on the basis that they were obtained ‘oppressively’ or are unreliable. The relevant statutory provisions are ss. 76(2)(a) and (b) and 77 of the Act.
What does “oppressive” mean?
The term ‘oppressive’ has caused problems for the courts. It seems to be agreed that oppression implies some “impropriety” which compromises the confession’s veracity: Fulling  QB 426.
Uncertainty exists, however, as the same sort of behaviour in different cases has led to the confession being excluded in one but not the other: Paris (1993) 97 Cr App R 99; L  Crim LR 839.
What about unreliability?
Aside from oppression, confessions may be excluded on the basis of unreliability. This unreliability may come about via “anything said or done” or something problematic concerning the circumstances in which the ‘confession’ was made.
An important point to note is that the suspect’s own conduct cannot undermine a confession: Goldenberg (1988) 88 Cr App R 285.
Another important reason to exclude a confession on the basis of unreliability is where the suspect is mentally unfit. There is a separate section of the 1984 Act dealing with this: section 77. In particular, this seeks to protect suspects who may be suggestible and may simply go along with police officers’ leading questions about an alleged offence.
Deciding on the admissibility of confessions
The actual process for deciding whether a confession can be admitted is a ‘voir dire’. That is essentially a mini-trial within or alongside the main trial. Section 76(2) of PACE gives guidance on this point.
The prosecution must prove to the criminal law standard that the confession was not obtained in the way alleged by the defence, otherwise it will be excluded. And, although there is some disagreement, the standard position appears to be that the defendant’s evidence at the voir dire cannot be admitted during any trial for the substantive offence: Wong Kam-ming  AC 247.
How we can help
If you are concerned about the conduct of police officers and/or the reliability of a confession made while in custody, please contact John Howey on 020 7388 1658, or email@example.com.Read More
There are two distinct criminal offences, one of harassment putting people in fear of violence and one without. Stalking is a similar but separate offence and is not covered in this article.
What does it involve?
There has to be a course of conduct involving as little as two incidents against another person or persons.
The dictionary definition is to “torment by subjecting to constant interference or intimidation”.
The law does not provide a comprehensive definition and there are many actions that can foreseeably alarm or cause a person distress that would not constitute harassment.
The offence is aimed at conduct that alarms or causes a person distress and which is oppressive and unreasonable.
What do the prosecution have to prove?
- That there is a course of conduct;
- which amounts to harassment of another; and
- which the defendant knows, or ought to know amounts to harassment of another.
Additionally, for the more serious offence the prosecution has to prove:
- that the course of conduct causes another to fear that violence will be used against him; and
- that the defendant knows or ought to know that his course of conduct will cause another to fear that violence would be used against him
How do I know it is harassment?
The test of whether you ought to know whether the course of conduct amounts to harassment is whether a reasonable person, in possession of the same information, would think the conduct amounted to harassment. The same test applies in respect of fear of violence.
Are there any time limits?
At least one of the incidents has to have occurred within six months of the charge, for the basic offence without violence.
What about defences?
There are three available defences for the basic offence:
- that the course of conduct was for the purpose of preventing or detecting crime;
- that it was conducted under a rule of law;
- that it was reasonable in the circumstances.
Additionally, it is a defence for the more serious offence if the course of conduct was reasonable for the protection of the defendant or another or for the protection of their or another’s property.
What sentence can I get?
For the offence without violence (the basic offence) up to six months imprisonment can be imposed (2 years if racially aggravated).
For the more serious offence involving fear of violence the maximum sentence was 5 years and is 10 years for offences committed on or after 3rd April 2017 (7 or 14 years if racially aggravated, again dependent on date of offence).
A restraining order can also be imposed, the aim of which is to protect the victim of the offence from further incidents, contact or risk of violence. Such an order can prevent contact with the victim and provide for an exclusion zone around their address. A restraining order can be imposed even if you are acquitted of the offence.
The law in respect of harassment and the potential defences is complicated, and there are other specific offences of harassment (for example of debtors) that are not covered in this article.
How we can assist
If you are being investigated for or have been charged with this offence please contact our office for further advice and representation, our solicitors are experts in criminal law and can guide you through the complexities. Please contact John Howey on 020 73881658 or firstname.lastname@example.orgRead More
You may have heard about ‘texts’ or a ‘brown envelope to the Judge’, some of the names for the old system by which someone could get a reduced sentence.
If you helped the police a ‘text’ may be handed to the sentencing judge explaining that you had assisted and a reduction in sentence may have followed. It was a murky world, clouded in some secrecy and one that few people properly understood.
A formal statutory system has now been put in place to regulate reduction in sentence for a defendant who aids the authorities, although the ‘text’ regime is still around.
The aim of the new regime is to govern assistance provided and the benefits that might flow as a result.
The old principles (the text) remain in use as it has always been the case that anyone convicted of a crime will receive credit against sentence for assistance rendered to the police or authorities.
Requirements under the new regime
The key features of the statutory scheme are:
- The offender must admit the full extent of his own criminality before the statutory framework can begin to apply, and he must agree to participate in a formalised process which has its own immediate purposes intended to avoid some of the problems which the earlier processes could create.
- Provided the offender admits the full extent of his criminality the process is not confined to offenders who provide assistance in relation to crimes in which they participated, or were accessories, or with which they are linked.
- This is largely a new process in which a post-sentence review of the sentence passed in the Crown Court can be reviewed in a judicial process on a reference back to the court by the prosecutor. That does not prevent there being such an analysis during a Crown Court sentencing decision.
- The decision whether a reduction in sentence should follow a post-sentence agreement is vested in the judge sitting in the Crown Court. The court is able to take into account the specific post-sentence situation. That is quite different from the former practice.
- If in the end the offender fails to comply with his agreement, that does not itself constitute a crime but he is liable to be brought back to the court and deprived of the reduction of sentence which has been allowed or would have been allowed if he had complied with the agreement in full.
New versus old
Following the new regime, rather than the old text regime, may result in a greater discount in sentence. There is no guarantee, however, that providing information will result in a reduction in sentence. It would very much depend on the nature of the information, how it can be used, and whether action can be taken by the police as a result (particularly action that might result in others being prosecuted).
It is important to note that as the formal regime requires full admissions of any criminality on your part, this may result in further charges being brought against you or further offences being taken into consideration on sentence. There is a careful decision to be made here.
How will I know if it has been taken into account?
The law says that if you are given a reduction in your sentence you have to be told that you have been given a lesser sentence and you must also be told what the greater sentence would have been. You will then know exactly how much of a reduction you were given.
How we can help
The decision is not an easy one, nor is the process, because of the potential consequences, which may include having to attend court as a witness, or receiving a longer initial sentence.
It is vital, therefore, that you obtain expert advice before speaking to the police. If this is something that you wish to discuss, please contact John Howey on 020 7388 1658 or email@example.comRead More
In recent years legislation has been enacted to ensure that crimes demonstrating hostility towards certain groups of people are treated more seriously than before. If an offence is said to be racially aggravated, then you should expect a heftier sentence.
What does it mean?
An offence is racially aggravated if, at the time of the offence, you demonstrate toward the victim hostility based on his / her membership of a racial group or the offence is motivated by that hostility.
So, shouting racist abuse or making comments, will make an offence racially aggravated, as will the situation where no comments are made but the offence is committed against someone because of their race.
Offences as a result of hostility toward a religious group, rather than racial, are treated in the same way.
The fact that the victim may be indifferent to any abuse is irrelevant to whether the offence is racially aggravated.
It is also irrelevant if the reason for the offence was unrelated to race. For example, abusing a doorman because he wouldn’t let your friend into a club.
How does it affect sentencing?
Each offence in law has a maximum sentence attached to it; for offences that are racially aggravated that maximum sentence is increased. For example, common assault carries six months imprisonment, the racially aggravated offence increases to a maximum of 2 years, for actual bodily harm the maximum sentence increases from 5 to 7 years.
The starting point is to consider the sentence that would have been imposed for the offence if it was not racially aggravated, considering all other aggravating or mitigating factors.
The sentence will then be increased to take account of the racial aggravation.
The extent of the increase in sentence will depend on the level of aggravation. The court will consider whether the offence was:
- part of a pattern of offending;
- deliberately set up to be humiliating to the victim
- committed in the victim’s home
- repeated or prolonged.
Account will also be taken of any distress caused to other persons or the wider community and whether the offender was a member of a group that promotes hostility.
Does it have to be charged as being racially aggravated?
Even if the offence isn’t specifically charged as being racially aggravated the circumstances can be treated as an aggravating feature in sentencing (O’Leary  EWCA Crim 1306).
How can we help?
We can advise you whether your behaviour does come within the racially aggravated definition or not, consider the evidence for you and we can also advise you on the likely penalty. This article is intended as a brief overview, if you would like to discuss any aspect of your case, please contact John Howey on 020 7388 1658 or email firstname.lastname@example.org.Read More