Disqualified Directors
Recently, three men from Halifax were convicted after one of them was found to have run a company whilst disqualified. The other two were convicted of assisting him.
If you’re thinking of trying to evade a director’s ban, be aware that it can lead to a criminal conviction and even prison.
Why was he disqualified?
Andrew Brian had voluntarily accepted a disqualification in 2009 after his previous company had run up a significant tax debt.
How can you be disqualified?
The courts also have the power, in certain circumstances, to disqualify a person from acting as director of a company. The power comes from the Company Directors Disqualification Act 1986.
The Act empowers the Crown Court, the Magistrates’ Court, or the High Court to make an order that a person be disqualified from acting as a company director for a period of time. In the Magistrates’ Court, the maximum period is five years, in other courts, it is fifteen years.
The Crown Court, a criminal court, may make an order even where this condition is not met and has a very wide discretion whether to do so. The court can disqualify a person where they are convicted of an offence ‘in connection with the promotion, formation, management, liquidation or striking off of a company.’
Where an offence can only be dealt with in the Magistrates’ Court, a disqualification may be imposed if an offender has been the subject of three default orders or convictions in the preceding five years.
The High Court can only disqualify a person where it thinks they are unfit to act as a director, and usually this is done when the company is wound up by the court.
Being unfit includes allowing a company to trade when it can’t pay debts, not keeping correct accounts, or using company assets for personal benefit. Andrew Brian had used significant amounts of company money to pay his own mortgage.
People who are declared bankrupt are also automatically disqualified from acting as directors.
What does a disqualification order mean?
A disqualification order means that, without permission of the court, a person cannot be a director, act as a receiver of company property, or be concerned or take part in the promotion, formation or management of a company, or act as an insolvency practitioner.
Andrew Brian was not listed as a director of Met Euro Ltd, but it was found he exercised control over it and creditors dealt solely with him in breach of his ban on taking part in the management of a company.
His son Thomas Brian was the director when the company went insolvent after running up debts of £255,000. A significant amount of the benefit from the company had benefitted Andrew Brian personally, going towards his mortgage.
What happens if you run a company after being disqualified?
In any case where a person is disqualified, acting as a director, or in any other way prohibited by the order, is a criminal offence. It carries a maximum penalty of two years imprisonment and an unlimited fine.
In the case of Andrew Brian, he was disqualified for a further twelve years and handed a twelve-month sentence suspended for twelve months and ordered to complete 150 hours of unpaid work.
His son Thomas received a twelve-month community order for helping him to carry out the offence.
In other cases, though, more severe sentences have been imposed. In 2014, Colin Cowley-Hurlock received twenty months imprisonment for running up similar debts in respect of three companies.
It’s also possible that the court will confiscate any benefit you have gained.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We can advise on all aspects of your case.
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Why hasn’t Michael Gove been arrested?
Why hasn’t Michael Gove been arrested?
A question on many people’s lips since the former Justice Secretary admitted to using cocaine several times earlier in his career.
So, could he face the legal consequences of this?
Cocaine is a Class A drug, the most serious category. Drug offences are governed by the Misuse of Drugs Act 1971 and whilst buying a controlled drug in this scenario is not an offence, possession is. It carries up to seven years in prison.
Is Michael Gove’s confession enough?
Possibly. The Prosecution will usually have to prove that a substance is in fact a controlled drug, and the most convenient way to do that is through a forensic report.
In this case, though, the drugs are long gone and can’t be analysed. The prosecution would have to rely on his public confession.
A confession was relied on in R v Chatwood [1980] 1 All ER 467 where the Court of Appeal said that a confession could amount to evidence that, on the face of it, the defendant had been in possession where he was expressing an informed opinion. However, the confessions in that case were made to police officers when the defendants were being questioned about the offences.
Whether Michael Gove’s opinion could be described as ‘informed’ will be the key question and would likely depend on how often he used the drug. He would probably be invited to attend an interview under caution first of all, to see if he repeated his allegations.
His confession could be used as evidence, however, if he were to be charged with attempted possession under the Criminal Attempts Act 1981.
The prosecution could accept that Gove did not actually possess cocaine but allege instead that he had tried to possess it. The maximum sentence is the same.
Has it been too long to charge Michael Gove with a drugs offence?
No. There is no general ‘Statute of Limitations’ in England and Wales. Offences only triable in the Magistrates’ Court usually have a limit of six months, but possession of a drug is not one of those.
He could, theoretically, still be charged.
Will Michael Gove be prosecuted?
The Crown Prosecution Service would make a decision as to whether a prosecution should proceed.
To do this, they apply the Full Code Test set out in the Code for Crown Prosecutors. This is the same for every offence.
The Full Code Test has two stages which need to be met. These are the evidential stage, and the public interest stage.
In short, there needs to be enough evidence for a realistic chance of conviction, and it must be in the public interest to bring a case. If a case fails either test, it will not be prosecuted.
The confession is potentially enough evidence for a case to be brought. A Crown Prosecutor would have to be satisfied that it, and any other evidence, is admissible and leads to a realistic prospect of conviction.
Any evidence from Owen Bennett, the City AM political journalist who outed Gove’s cocaine use in his unauthorised biography of the Environment Secretary, or Gove’s political advisors to whom he confessed would need to be carefully considered, and a prosecutor may have grave doubts as to its admissibility.
In the event there was enough evidence, the case would also have to pass the public interest stage. A case will usually pass this stage unless there are factors against the prosecution that outweigh those in favour.
This stage takes into account a lot of factors, including the seriousness of the offence, the circumstances, any harm caused, impact on any victims, and whether a prosecution is proportionate.
The likely penalty would be a small fine or community punishment at most.
Therefore, Gove could be prosecuted but it is unlikely in all of the circumstances. Reputationally and politically, this admission could exact a great cost.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7 388 1658 and let us help. We can advise on all aspects of your case.
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Prison and prisoners families
Prison is supposed to be a punishment. But it’s also designed to help people address their behaviour and stop them re-offending. When imprisonment leads to more offending, it isn’t working.
The specific problems faced by women have been highlighted recently by the Farmer Review for Women. Lord Farmer hopes to improve women’s experience within the criminal justice system with the aim of reducing re-offending.
But it isn’t just about prisoners. A previous study by Lord Farmer on male prisoners found 63% of male prisoners’ sons went on to offend themselves and adult children of imprisoned mothers are even more likely to be convicted.
The problems revolve mainly around the breakdown of family relationships, particularly as women are often primary carers, that flow from a spell in custody, whether on remand or in prison.
The Report found that women who receive family visits are 39% less likely to reoffend, and so the importance of alleviating these problems is obvious.
What are the problems?
Any custodial stay, whether the first night in the cells or five-year prison sentence, can have a devastating effect on several areas of a person’s life.
Relationships with all family members, particularly with children and partners, suffer badly when one member of that unit is taken away for an extended period.
This is made worse by the fact that women are held on average 63 miles from home, increasing the difficulty of prison visits.
Anxiety of mothers and primary carers in custody is increased due to separation from the children, especially where the mother is the sole carer. Children are the first priority in this situation, and the Report found that little progress can be made with the prisoner until this anxiety is dealt with.
Domestic violence also is recognised for its huge impact on women’s lives, tying in to relationships and possible causes of offending.
What can be done to help?
The Report recognises that the early intervention in a wide range of circumstances including mental health, relationship breakdown, substance misuse, education and debt can all help to prevent offending.
It makes a number of recommendations to strengthen female offender’s family and other relationships to prevent re-offending and reduce intergenerational crime.
Recommendations
Earlier intervention to address the vulnerabilities of some women which can lead to them coming into contact with the criminal justice system and diverting them from it. If women had ready access to services and good peer support networks, it could prevent offending and the repetition of the cycle by children.
A specific recommendation is to create a personal circumstances file for a woman so that information can be shared through trusted organisations such as the police and local authority, NHS and Victim Support.
A renewed focus on alternative accommodation is required, bail hostels are currently geared towards men and prohibit children living there or visiting them. These restrictions need to be reviewed by the government and women in hostels need to be referred to services to assist with parenting or relationship issues where appropriate.
Pre-sentence reports should be mandatory for all women (and male primary carers) if a custodial sentence is a possibility. The report would clarify the repercussions of a custodial sentence on dependants and put forward detail of mitigating factors such as domestic abuse.
Women sentenced to custody or remanded must be given the opportunity to make telephone contact with dependents and organise childcare before being put onto transport. Consideration should be given to primary care or other relationships before a woman is remanded as even a short remand can have devastating effect on families, tenancies and the ability to provide for family.
The development of custodial centres should be a long-term strategy, used for women whose crime is serious enough to merit a custodial sentence but who are low enough risk to retain care of their children.
Where a custodial term is inevitable there are many recommendations to enhance rather than break down family ties. Such recommendations as improvements to the Assisted Prison Visits scheme and space for private family visits.
Some of the most frequent issues raised by women prisoners were access to release on temporary licence (ROTL) and child resettlement licence (CRL).To address this ROTL could be used far more frequently and creatively to help women fulfil caring responsibilities and aid resettlement, CRL could be widened to include other family circumstances and not just rest on sole carer status.
To aid communication during sentences the operation of prisoner email schemes needs to be consistent and all female prisons to develop an email reply system so that children do not think they are being ignored if no reply is received. Virtual visits and in cell telephony should be utilised to supplement face to face visits.
Conclusion
The cost of the recommendations is balanced throughout, for example, by the savings from keeping women out of the prison system and the cost saved by children not being cared for by social services. There are certainly a number of interesting recommendations, but it remains to be seen whether they are put into place.
In the meantime, our advocates will ensure that a comprehensive picture is presented to any sentencing court.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk and let us help. We can advise on all aspects of your case.
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Prosecuting Sexual Offences – Time for a rethink?
Justice, the renowned human rights organisation, has published a significant report that examines the prosecution of sexual offences, and in some areas calls for a radical overhaul.
Among the authors of the report is Judge Peter Rook QC, considered an expert authority on this area of law. He is a senior Judge at the Central Criminal Court (‘Old Bailey’).
Preventing and reducing offending
Two of the areas examined were preventing and reducing offending. Turning its attention to those who view indecent images of children (‘IIOC’), the report recommended as follows:
“Police-led diversion schemes have recently been developed. These seek to address the factors that may lead to offending behaviour without the need for prosecution. We have been inspired by the success of these programmes to develop our own proposal for a Conditional Diversion Scheme, for individuals who have viewed IIOC. We consider that this scheme will provide the correct intervention to these individuals as quickly as possible, helping to both save prosecution and court resources and ensure reoffending rates remain low. Our proposed scheme has been developed together with experts in the field and we consider it to be a sensible response to the volume of reports that the police receive each month.”
Rehabilitation
The authors also had much to say concerning rehabilitative programmes and the effect of protective/preventative orders:
“When it comes to sentencing, this working party believes that lessons should be learned from the skills-based approach to rehabilitation, which has shown this to be an effective way to reduce reoffending rates. There should be a shift in focus to rehabilitation and more flexibility should be given to sentencers to allow them to make suitable orders that allow the individual to rehabilitate effectively. This is especially the case for Sexual Harm Prevention Orders, where we have heard that overly restrictive orders can isolate an individual from society once released from prison, hindering them from getting their lives back on track and risking further offending.”
Our work brings us into contact with a great many people who commit sexual offences at all level of seriousness. Additionally, of course, many have committed no crime at all. We know that criminal investigation and proceedings can have a devastating effect on those accused and their wider families.
In all cases, we work sensitively and diligently to prepare a robust defence case when that is required and to work hard with others to ensure outcomes that work for our clients and the wider community when it comes to sentencing.
We welcome this report and its mature examination of such complex societal issues.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.
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Sally Challen – An Issue of Coercive Control
In February 2019 the Court of Appeal quashed Sally Challen’s conviction for the murder of her husband and ordered a retrial.
Last week the prosecution accepted a plea to the lesser offence of manslaughter and Challen received a sentence that meant she would serve no further time in custody.
Why was the appeal allowed?
Challen advanced two grounds of appeal:
- The fresh evidence on coercive control and the fresh psychiatric evidence support the proposition that at the time of killing the appellant was suffering from an abnormality of mind. Had expert evidence on coercive control been available at the time of the trial, the jury may have reached a different conclusion on diminished responsibility.
- The fresh evidence also goes to the issue of provocation in that it helps establish the appellant was provoked to kill the deceased because of his controlling and coercive behaviour.
The foundation for both lines of the challenge was her husband’s controlling and coercive conduct, conduct which is now a criminal offence in itself. Section 76 of the Serious Crime Act 2015 criminalises a pattern of abusive behaviour, the individual elements of which are not necessarily unlawful in themselves. This is designed to better protect victims of domestic abuse.
Counsel for Challen argued that the courts have recognised the concept of battered person syndrome, but that syndrome focuses on the psychological impact of repeated physical abuse, whereas coercive control focuses on systemic coercion, degradation and control.
The lack of knowledge about the theory of coercive control at the time of the appellant’s trial, meant that the partial defence of diminished responsibility was not put as fully as it could have been and the defence of provocation was not advanced at all by counsel then representing the appellant.
The appellant’s actions were not, therefore, put into their proper context.
Did the court agree?
“We were not persuaded that had it stood alone the general theory of coercive control on the facts as presented to us would have afforded the appellant a ground of appeal. However, it did not stand alone. We have focused on [the Doctor’s] post-conviction diagnosis that the appellant suffers from borderline personality disorder and a severe mood disorder, probably bipolar affective disorder, and suffered from those disorders at the time of the killing. If that is correct, it is in that context that the theory of coercive control may be relevant.
We express no view on whether the appellant was the victim of coercive control and no view, if she was a victim, on the extent to which it impacted upon her ability to exercise self-control or her responsibility for her actions. However, because expert evidence was not available to defence counsel at trial, neither the possibility that she was suffering from these two disorders, nor the issue of the impact upon her of the abusive relationship were explored at trial in any detail. The issue of provocation was not advanced at all.”
Accordingly, a retrial was ordered.
In the end the prosecution accepted the plea to a lesser charge of manslaughter in light of overwhelming evidence as to the husband’s behaviour and the effect on Challen’s state of mind at the time of the killing.
What does this case tell us?
From a legal perspective it tells us two things:
- Coercive control is now a relevant factor to be taken into account when considering what defences might be available; and
- That as medical and other disciplines evolve, we have to take stock of older cases to see whether those advances might support a fresh appeal.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.
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Finn’s Law – What It Means for Animal Welfare
With much fanfare, ‘Finn’s Law’ came in to force on 8th June 2019, following the implementation of the Animal Welfare (Service Animals) Act 2019.
The 2019 Act makes a straightforward amendment to section 4 of the Animal Welfare Act 2006.
What was the problem?
Section 4 of the Animal Welfare Act creates the criminal offence of ‘unnecessary suffering’ in relation to animals.
There is however a defence in the Act, namely that the suffering is ‘necessary’. In several cases where police dogs assisted in the capture of suspects, the suspect injured the dog but claimed self-defence.
In Finn’s case, Finn sustained severe stab wounds to the chest and head. However, only criminal damage charges could be brought against the suspect.
What has changed?
The Animal Welfare Act has been amended in the following way:
In determining for the purposes of subsection (1) whether suffering is unnecessary in a case where it was caused by conduct for a purpose mentioned in subsection (3)(c)(ii), the fact that the conduct was for that purpose is to be disregarded if –
(a) the animal was under the control of a relevant officer at the time of the conduct,
(b) it was being used by that officer at that time, in the course of the officer’s duties, in a way that was reasonable in all the circumstances, and
(c) that officer is not the defendant.
In basic terms this removes the self-defence argument.
Could this lead to unintended consequences?
Some people have asked what would happen if a police dog attacked an innocent person (either a bystander or an innocent suspect) – would they too be denied the opportunity to defend themselves lawfully?
The Act does on the face of it suggest that there would be no ‘self-defence’ defence available. But, in the explanatory notes to the bill that passed through parliament, it was observed:
‘…a person would be able to use the self-defence consideration at section 4(3)(c)(ii) if the animal attacked them unduly.’
It could therefore easily be argued that a police dog attempting to apprehend an innocent person would be judged to be acting ‘unduly’.
The wording of the Act does, however, leave a lot to be desired. Our lawyers will be carefully scrutinising the use of this Act over the coming months to ensure defendants are not deprived of critical legal safeguards.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help. We deal with all manner of criminal offences on a daily basis, from investigation through to court, and have the expertise to get you the best result possible.
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Driving Bans – Not Just for Traffic Offences
Most people know that driving bans may follow for serious road traffic offences or a series of lower-level traffic crimes as a result of ‘totting up’. Few of our clients know that disqualifications can follow in other cases. For example, using a vehicle to facilitate the commission of an offence.
What is the relevant law?
There are two relevant provisions in the Powers of Criminal Courts (Sentencing) Act 2000.
General power to disqualify
Section 146 provides for a general power to disqualify a person from driving following a conviction for any offence. There is no requirement for a vehicle to have been used during the crime.
In Cliff [2004] EWCA Crim 3139, the court held:
‘In our judgment, it is not necessary for the offence to be connected to the use of the motor car. The section provides an additional punishment available to the court. That is not to say that a court can impose a period of disqualification arbitrarily. There must be a sufficient reason for the disqualification. The reasons will, of course, be open to scrutiny by an appellate court, as they are in this case.’
The disqualification period can be ‘…for such period as it thinks fit’.
The case law is not always consistent (see for example Bye [2005] EWCA Crim 1230 and compare with Cornell-Gallardo [2010] EWCA Crim 3151). An advocate must always be careful to scrutinise the facts of each case and challenge the making of such orders if appropriate.
Using a vehicle to commit an offence
The provisions under section 147 of the Act are much better known and can only be used where the offence is punishable on indictment with imprisonment of 2 years or more or is an offence involving an assault. The magistrates’ only have power in relation to the latter.
In order to impose a driving ban, the court must be:
‘…satisfied that a motor vehicle was used (by the person convicted or by anyone else) for the purpose of committing, or facilitating the commission of, the offence in question’, or
concerning assault offences ‘…satisfied that the assault was committed by driving a motor vehicle’.
Again, the disqualification period can be ‘…for such period as it thinks fit’.
Some Judges appear to be very keen to use this power and impose driving bans, while it rarely seems to occur to others. It can be very much a lottery so far as the sentencing process is concerned.
The case law concerning this provision is complex and voluminous. All advocates need to ensure that they are not taken by surprise when it is mentioned (often with no notice) as part of the sentencing process.
All of our advocates are highly trained and able to respond appropriately to all sentencing and other issues.
How we can assist
If you need specialist advice on driving offences, please get in touch. Call John Howey on 020 7388 1658, or email jhowey@jfhlaw.co.uk and let us help. We deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.
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Private Prosecutions – ‘Doing a Boris’
A District Judge sitting at Westminster Magistrates’ Court last week authorised that a summons be issued against the prominent conservative member of parliament, Boris Johnson.
The allegations relate to alleged conduct during the Brexit referendum campaign and in particular the £350m per week for the NHS slogan that adorned the side of campaign buses.
Johnson has applied for a judicial review of the decision, but if that is unsuccessful he will have to appear in court to answer these charges and eventually face trial at the crown court.
So what?
The unusual aspect of this case is that this is a private prosecution crowdfunded by individuals who support the prosecution.
Is that unusual?
In England and Wales, the vast majority of prosecutions are undertaken by the Crown Prosecution Service. Also, there are also a large number of other public bodies that regularly prosecute cases, generally of a specialist nature, before the courts, such as the Environment Agency, Serious Fraud Office, Local authorities, Civil Aviation Authority etc.
There are also very few well-known organisations that regularly privately prosecute cases, most notably the RSPCA in respect to allegations of animal cruelty.
But private individuals prosecuting cases are relatively rare.
Are private prosecutions always allowed?
The Supreme Court has reiterated quite recently that private citizens have a constitutional right to prosecute alleged crimes before the courts.
Some companies and individuals’ resort to private prosecution when they feel that the State has failed to act.
There are many safeguards to prevent vexatious prosecutions, such as:
- Scrutiny before a summons is issued
- Abuse of Process remedies
- The ability of the Crown Prosecution Service to take over a private prosecution
- A new proposed code for private prosecutors drafted by specialist firms who conduct this type of work
- Risk of adverse costs orders if the prosecution is unwarranted
Despite these safeguards, there are still some concerns, and we are particularly alert when a private prosecutor is involved to ensure defendant’s rights, particularly concerning disclosure and fair prosecution practice, are protected. We will not hesitate to seek full costs recovery on behalf of a client if the prosecution ought not to have been brought in the first place.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 and let us help, we deal with all manner of criminal offences on a daily basis and have the expertise to get you the best result possible.
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Tough New Weapons Laws Hit the Statute Book
On 16th May 2019 the controversial Offensive Weapons bill received Royal Assent, bringing into law the Offensive Weapons Act 2019.
Why was this law passed?
This legislation is designed to deal with the current problems in relation to knife crime and other serious offending involving weapons, including acid attacks. Whether it will be successful in doing that does, of course, remain to be seen. However, there are, without doubt, a lot of new measures that we are monitoring closely.
Is it in force now?
As with most Acts of Parliament different provisions come in to force at different times, so do consult us to find out the latest position.
What are the main changes?
New offences:
- Sale of corrosive products to persons under 18; This offence carries a maximum sentence of 6 months imprisonment and may present a significant challenge for some smaller retailers who will need to ensure that comprehensive training is provided to all sales staff to avoid potential prosecution and punishment.
- The offence of having a corrosive substance in a public place; This offence carries a maximum sentence of 4 years’ imprisonment.
- The offence of breaching knife crime prevention order; This offence carries a maximum sentence of 5 years’ imprisonment.
- Sale etc. of bladed articles to persons under 18; This provision extends existing law but introduces several complex challenges for retailers.
Online retailers will also be affected by these provisions.
Knife Crime Prevention Orders:
This new order is essentially a ‘knife crime ASBO’ and is one of the most stringent preventative orders ever to have been put on the statute book.
The new laws have been widely condemned, and the implementation (likely to be piloted first in London) will be equally as controversial. We are awaiting further details of the pilot along with statutory guidance on their use.
Other changes of note:
- Amendments to the definition of “flick knife” to cover knives fully opened from a partially open condition and by ‘manual pressure applied to a button, spring or other device in or attached to the knife’. This change will close existing ‘loopholes’ in the current legislation
- Prohibition on the possession of certain dangerous knives
- Prohibition on the possession of offensive weapons on further education premises
- Prohibition on the possession of offensive weapons (numerous statutory amendments)
Numerous changes to offences concerning:
- The offence of threatening with an offensive weapon etc. in a public place etc
- The offence of threatening with an offensive weapon etc. on further education premises
- The offence of threatening with an offensive weapon etc. in a private place
- Search for corrosive substance on school or further education premises
- Various firearms offences
We will be carefully monitoring the implementation of these new measures to ensure that we are always able to provide up to date and comprehensive advice to our clients.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk and let us help. We deal with all manner criminal offences on a daily basis, from the initial investigation through to court proceedings. We have the expertise to get you the best result possible.
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