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.
With the ever-growing popularity of social media websites such as Facebook, Twitter and Instagram it is important to take a step back and consider how you use them. You need to make sure that you and your children not only control the personal information that is put onto social media but also your behaviour on such sites.
Control your information online
Be aware of the potential for cyber-enabled fraud. Fraudsters can use information obtained from such sites to commit identity theft. Telling everyone about your forthcoming holiday may also be an advance initiation to a burglar – it is surprising how much information we reveal about ourselves over a period of time.
If you have children you also need to be aware of the dangers of persons contacting them and then grooming your child, building an emotional attachment to them with a view to a meeting for the purpose of sexual abuse or exploitation.
Many online games allow for messaging between users – do you know who your child is talking to?
Control your behaviour
Many offences can be committed in the heat of the moment, or drink, the typing of a comment that cannot then be taken back.
Trolling, or sending abusive messages online, can be an offence under the Malicious Communications Act 1988 and the Communications Act 2003, with stiff penalties in both cases.
Revenge porn, for example publishing intimate images of an ex-partner without their consent, is now a criminal offence and often results in a prison sentence.
What may seem to be banter may actually be offensive, what may be intended to be seen by a few could be seen by thousands.
A fake social networking profile or account may also be a criminal offence in certain circumstances.
What about freedom of speech?
This is not an absolute right and may be restricted where necessary and proportionate.
Think it couldn’t happen to you?
Remember the Robin Hood Airport case? A young man made what he intended to be a jokey comment about blowing up the airport if he couldn’t make his flight due to adverse weather.
He found himself in court, was convicted by magistrates, and again on appeal before finally his conviction was quashed at a second High Court appeal. By then he had already lost his job as a consequence of the conviction.
What are the consequences?
Social media has even recently been blamed for an increase in knife crime as it can amplify the effect of violence. Accordingly, online offences are being dealt with seriously.
Last year the Crown Prosecution Service updated its policy statements in order to take account of the increase in online abuse, saying that individuals need to appreciate they can’t go online and press a button without any consequences.
At the other end of the spectrum, saying something unpopular or unpleasant is not unlawful, people’s sensitivities need to be balanced with free speech, and we see reported a number of cases that cause us concern.
This tide of sensitivity could result in people pleading guilty when in fact they are not – always take early advice.
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 email@example.comRead More
On 31st January 2018, regulations bring into force sections of The Criminal Finances Act 2017 dealing with unexplained wealth orders (UWOs), along with various other related provisions. This is the latest in what can often be seen to be a draconian set of powers aimed at interrupting criminal activity by the back door. However, as with other financial legislation, there is a risk that ordinary law-abiding people can find themselves subject to an order.
What are the unexplained wealth orders?
The purpose of this new order is to allow for certain people who obtain property which would ordinarily be beyond their obvious means, to be required to prove that it was acquired lawfully. This is in effect a reverse burden of proof.
Law enforcement agencies often have reasonable grounds to suspect that identified assets of such persons are the proceeds of serious crime. However, they are often unable to freeze or recover the assets under existing provisions in the Proceeds of Crime Act due to an inability to obtain evidence (often due to the inability to rely on full cooperation from other jurisdictions to obtain evidence).
The authorities which may apply for an unexplained wealth order are:
– The National Crime Agency.
– HM Revenue and Customs.
– The Financial Conduct Authority.
– The Director of the Serious Fraud Office.
– The Director of Public Prosecutions.
What to do?
If you are subjected to an order of this kind, you must provide a statement which does the following:
– Sets out the nature and extent of your interest in the property.
– Explains how you obtained the property, particularly how it was paid for.
– Provides details of any settlement if the property is held by trustees.
– Sets out any other information about the property specified in the order.
In addition to a statement, the order may require you to supply documents connected to the property.
Before it can make an order, the High Court must be satisfied that the following criteria are met:
– There is reasonable cause to believe that the person in question holds the property and that it is worth over £50,000.
– There are reasonable grounds for suspecting that this person’s known income (from lawful sources) would not be enough to obtain the property.
– The person in question is a politically exposed person (see definition below) or there are reasonable grounds for suspecting that they are or have been involved in a serious crime or someone connected to this person is or has been so involved.
A politically exposed person (PEP) is someone who is or has been entrusted with prominent public functions by an international organisation, a State other than the UK or another EEA State, a family member of such a person, a close associate or someone connected to them in another way.
Make sure you provide all the information required
It is a criminal offence to knowingly or recklessly make a statement that is false or misleading in response to an unexplained wealth order. Doing so can result in two years’ imprisonment and/or a fine. This offence can be tried in either the Magistrates’ Court or the Crown Court.
Failing to provide the information, in full or part, may prejudice any civil forfeiture proceedings.
In some cases, a UWO will be accompanied by an interim freezing order. This prohibits the respondent to the UWO and any other person with an interest in the property from in any way dealing with the property.
Where the property is thought to be in a country outside the UK, the Secretary of State may forward a request for assistance to the government of the receiving county. This can be a request to prevent anyone in that country from dealing with the relevant property and provide assistance in managing it as required.
We Can Assist
John Howey, Senior Solicitor
A Criminal Solicitor is required to join JFH Law’s established criminal law team. The successful candidate will have at least 2 year PQE in criminal work, and will have excellent legal knowledge and procedural understanding. The candidate must have duty solicitor status, and have prior experience in undertaking magistrates’ court trials. The successful candidate will be a confident advocate; higher rights of audience would be advantageous, but not essential. An interest in and experience of Extradition Law would also be an advantage. The candidate will be expected to undertake both legal aid and private paying files, and will have a keen interest in business development. They will be handling a varied and busy case load from start to finish.
This is an excellent opportunity for an enthusiastic criminal solicitor to join a dynamic and modern law firm with fantastic career progression opportunities.
The MET police in London announced this week that it was ‘not practical’ to investigate certain low level crimes in London due to a strain on budget and future savings that are required to be made.
According to New Scotland Yard, there would be a shift towards ‘empowering our officers’ to assess for themselves whether it was proportionate to investigate offences such as shoplifting, criminal damage and car crime. If the complainant in a case was not willing to attend court or the value of the loss/damage was relatively low there could be a decision not to even investigate.
The MET current working procedures
Currently when a complaint is made the police will investigate and make an arrest, or interview voluntarily, if they have reasonable grounds to suspect a particular person’s involvement. If a decision cannot be made about that particular case, the suspect is either bailed to return to the police station or ‘released under investigation’ (RUI). In bail cases the police will work towards making a decision by a particular date; in RUI cases the matter is left open indefinitely whilst investigative work continues.
Increasingly, often due to workload, we have found that RUI cases do not appear to be actively investigated by officers as they do not seem to be high priority. This leaves both suspects and complainants not knowing what will happen to their case. For a complainant, this could leave them feeling justice is not done; for suspects, there will be no way of knowing whether they will face charge and potential criminal proceedings.
Has the MET really thought about the negative consequences of this cut?
There are numerous concerns we have with the proposals laid out by the MET. One of which is the stage at which the decision not to investigate will be made. If made at the point of complaint the effect is likely to be that there are no arrests; this could potentially lead to an emboldening of suspects. If a person inclined towards theft knows that there is a no investigation policy for theft below £50 they are likely to more carefully plan their theft so that it falls below that particular threshold. What is likely to happen is that there is a shift towards lower value theft but in far greater volumes.
If there is no investigation, and of course no arrest, charge and sentence to follow, victims will be left out of pocket and with a feeling that justice has not been done. This could lead to shops and retailers having to tighten their own security, the cost of which is almost inevitably going to pass to the innocent consumer.
Perhaps more worrying is the possibility that retailers and individuals alike may dispense their own justice. If a low-priority theft is not investigated, will it follow that a low-level assault committed on a suspected shoplifter also not be investigated? With budget cuts likely to continue will the new policy be extended; ie the threshold extended to £100?
Policing and law enforcement must not be cut: the criminal justice system is in danger!
We have all had to deal with the years of austerity and cut-backs, but policing and law enforcement is one of the key areas that simply cannot be cut. The criminal justice system is already at breaking point with decrepit prison conditions, prosecution failings, legal aid cuts and court closures. Of course there has to be prioritisation of certain criminal offences, but it should not be at the cost of properly policing and enforcing lower level offences.
If you require representation at the police station or court contact our team on 020 7388 1658 or firstname.lastname@example.org
Duncan Roberts, SolicitorRead More
New guidelines were published on 21st August by the DPP on how to proceed with ‘hate crimes’ suggesting that the CPS has formally recognised the far-reaching impact online ‘hate crimes’ may have. In response to this problem, they have promised to prosecute such crimes as robustly as offline ‘hate crimes’.
To achieve this aim, the CPS will rely on a revised guidance on the prosecution of social media cases. This guidance is to be used by prosecutors tasked with making a charging decision and/or to advise the police on their investigation.
The guidance makes clear that all forms of online communication, including emails, text, pictures, retweets and sharing on social media platforms, are covered. There is greater recognition of the diverse types of online ‘hate crimes’. For example, individuals who encourage grossly offensive, indecent, obscene or false communication through tweets/retweets, creation of derogatory hashtags or doxing may be charged of a criminal offence under section 44 of the Serious Crime Act 2007.
Cyberstalking in ‘hate crime’
“Cyberstalking”, although not a criminal offence in its own right, is a form of online harassment and may be used as an outlet to exert power and control in committing Violence against Women and Girls (VAWG) offences. The guidance sets out a number of examples of cyberstalking including ‘baiting’, posting ‘photoshopped’/altered images of complainants online, creating false profiles on social media, hacking, monitoring and controlling the complainant’s accounts. Threats of serious injury or rape on women have previously been communicated by sending a picture or a video of another being subjected to such assaults.
If a prosecutor makes a decision not to prosecute, they are reminded to advise on whether it is appropriate for other orders be applied for, such as Prevention Orders, Criminal Behaviour Orders, Restraining Orders and Domestic Violence Protection Notices and Domestic Violence Protection Orders, as a means to restrain a person from their use of social media.
Encouragement is also given to persons subjected to abuse online to report the abuse to the police and/or to the social media platform, and to retain evidence by taking screenshots of the offensive communication.
Whilst this guidance does not reflect a change in the law, it does signal a change in approach by the CPS to these types of offences. It will only become clear in the next few months whether the CPS and the police will adopt a proportionate approach to the prosecution of these offences.
Please contact us on 0207 388 1658, or email email@example.com if you wish to discuss any criminal matter with us further. We have a dedicated team of lawyers specialising in crime who are here to help you.
Cheryl Low, Solicitor
Safer Borders? The impact of Brexit on the European Arrest Warrant scheme
One of the themes of the Brexit campaign was that Brexit would give the UK control over its borders and help in the fight against crime and terrorism. Yet, no alternatives to the current extradition arrangements were considered. With Brexit and recent controversial cases of extradition requests made by Romania, the future of the European Arrest Warrant (EAW) is re-emerging as an issue of particular concern.
The UK and International Law
The EAW is a tool used by Governments within the European Union (EU) to secure the arrest and extradition of people who have committed or are accused of committing crimes in their own country. Since 2004, EU Member States are required under the EAW to transfer suspects or prisoners to other states to face trial or complete a sentence.
The UK’s extradition obligations are derived from the bi-lateral and multilateral extradition treaties and agreements to which the UK is a party. These obligations were implemented into domestic law through the Extradition Act 2003. This particular piece of legislation was drafted to bring into force the EAW and to regulate extradition requests by and to the UK.
What would the impact of ‘Brexit’ be?
While the EAW has proven to be an effective instrument in the cross-border fight against crime and terrorism, its future is likely to be in jeopardy after the UK leaves the EU. As the PM Theresa May revealed the full terms of her proposal for EU citizens’ rights, the policy indicated that the government will “apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK”. The message was subsequently spread across the media that thousands of ‘European criminals’ could face deportation from Britain following Brexit.
In fact, it will be far more difficult to remove accused or convicted persons following Brexit than it is now under the current law. This is largely due to the information sharing system across the EU that UK may no longer be part of. Through its membership of the EU, the Schengen Information System, and the Europol, the UK has access to information about previous convictions of all EU citizens. This means that it is only through the UK’s membership of the EU that the UK has access to information about those offences. It is also through the UK’s membership of the EAW scheme that the UK has an ability to extradite those individuals.
While the UK remains a member of the EU there will be no change to the way extradition law operates under the Extradition Act 2003. However, the inevitable consequence of the completion of the Article 50 process will mean that the UK’s rights and obligations under the EU law will cease. Brexit secretary David Davis has said that arrangements for EAW, Europol and exchanging information will need to be replaced “because that will go when we leave the European Union”.
Consequently, there will need to be amendments to the relevant provisions of domestic law. More importantly, the UK will need to reach some important agreements on its extradition relationship with the EU and the individual Member States. The task would be simplified if the UK could reach an agreement with the EU as a whole. In our recent article entitled ‘The EAW after Brexit’, we indicated that if the UK is not part of the EAW, then any requests for an extradition to and from the UK will most likely follow the system we currently have for non-EU countries. This could become the legal basis for doing business with the remaining EU members, although it is a more onerous and costly route than the EAW.
If the UK is not able to negotiate a similar deal, in all likelihood, it could have a big impact on the government’s ability to bring criminals to justice. There are of course question marks about what will actually happen after Brexit but the probability that cooperation between the UK and the remaining EU countries will be reduced is very high. It is, therefore, a matter for the UK government to make sure that when it comes to the EAW, Brexit does not mean Brexit.Read More
Crown Court ‘Drug’ importation trial success
The JFH Crime team have successfully defended a Portuguese national accused of importing approximately £500,000 of Class A dugs into the country. Our client had travelled from Dubai and said that he believed that he was importing gold in order to avoid the duty that would otherwise have to be paid payable. He was arrested when he met another man to hand over the bag containing the drugs. The other man was arrested, eventually pleaded guilty and received a long prison sentence.
The prosecution relied on telephone evidence, but after looking at that very carefully, we were able to show that there was no link to the other defendant. The phone evidence showed that our client had no idea who he was supposed to be meeting and that he was receiving instructions from a third person, believed to be in Portugal. There was nothing in the phone evidence to suggest that our client knew that he was bringing drugs, rather than gold, into the country.
Our client was held in custody throughout the build up to the trial, and over the course of a number of visits to see him, we were able to take his detailed instructions. The fact that he was able to provide such a detailed account of his actions no doubt helped him at his trial. At the end of the trial, the client was found not guilty, and released from prison. He has now returned home.
The client was represented in the Crown Court by Ms Amanda Hamilton from 15 New Bridge Street Chambers, instructed by John Howey of JFH Crime.
If you have a case in the Crown Court and need representation, please contact us on firstname.lastname@example.org, or call us on 02073881658Read More
The Sentencing Council has today published a consultation paper on sentencing for manslaughter. The timing of this consultation is particularly apt, giving the recent announcement of charges being brought in relation to the Hillsborough disaster and the possibility of charges resulting from the Grenfall Tower fire.
Although much of the media reaction has been to suggest that Judges are being told to impose longer sentences, that is not what the consultation is about. The sentencing guidelines exist to provide a framework within which judge’s work, and to try to ensure consistency throughout the judicial system. There are a number of guidelines already in use, covering robbery, theft, burglary, assault, sexual offences and drugs.
Manslaughter has always been a difficult offence to sentence for, as there are so many different sets of circumstances. The consultation sets out different guidelines for different types of manslaughter; unlawful act manslaughter, which often involves death as a result of a single punch; gross negligence manslaughter; manslaughter by loss of control or by diminished responsibility. There are some significant ranges within the guidelines, for example the guidelines for diminished responsibility range from 3 years imprisonment to 40 years. This is simply reflecting the difficulties that judges have faced for years.
If you want to know more about the work of the Sentencing Council, visit their website here; https://www.sentencingcouncil.org.uk/
The Daily Mail has reacted with its usual predictable outrage and lack of understanding to the recent decision of the High Court in the case of Grecu & Bagarea v Romania. This is the latest case in the ongoing saga of Romanian prison conditions.
Romanian prisons and the Article 3 Human Rights
There have been a number of cases both in this country and throughout the rest of Europe where people who are wanted by Romania have sought to challenge their extradition on the grounds that it would be a breach of their Article 3 Human Rights. It is widely accepted that the prison conditions in Romania are very poor, both in terms of the space allocated to an individual prisoner and the overall conditions.
Challenges in this country have been brought mainly in relation to the amount of space that prisoners are held in. In previous cases, the Court has decided that the amount of space that a prisoner would normally have is not enough. However, the Romanian authorities have promised that people extradited from the UK would be held in better conditions, with more space. Evidence from people later extradited has made it clear that this is not happening, and the Romanian authorities have accepted that there are problems.
At some point, the High Court is going to have to decide whether the Romanian assurances can be relied upon, as they continually breach them. The signs from other courts in Europe, and in particular from a Croatian case heard in the European Court of Human Rights, is that patience has run out. Our article JFH Crime secures the discharge of Romanian EAW, talks about the latest update from September 2017.
Another ‘last chance’ for Romania
Contrary to the Daily Mail’s view, the High Court has not said that Grecu and Baggarea can stay in this country. They have allowed the Romanian authorities ‘a final opportunity’ to provide the necessary undertakings, despite Romania having had a number of ‘last chances’. The Court appear to acknowledge that if the Romanian authorities cannot do so, there can be no extradition to Romania until the problem is resolved. It is likely that the High Court will make a decision in this case in the next few weeks, but do not expect that to be the end of the matter.
Please contact John Howey on 0207 388 1658, or email email@example.com if you wish to discuss your extradition matter with us further, or to find out whether your would be eligible for legal aid for extradition matters. We have a dedicated team of lawyers specialising in extradition who are here to help you.
John Howey, Senior Solicitor