Drugs in Prisons and the effect on Sentencing
With many offences, the punishment may vary according to the context of the criminality. For example, violence in a domestic context is usually treated more harshly than the same level of harm against a stranger. The same is true for drugs case, especially when it comes to drugs in prisons.
Sentencing
A failure to understand this basic point can result in clients being given incorrect advice about the likely sentence. An attempt to ‘over mitigate’ and suggest an unrealistic penalty can often backfire. This is because the court loses sight of other better points made in mitigation.
Recently, a man pleaded guilty to taking three relatively small drugs packages into prison, at the request of his cousin. The packages contained cannabis resin, cannabis bush and 20 steroid tablets.
In passing sentence, the judge observed that anyone involved in smuggling items of this sort into a prison commits an offence that passes the custody threshold by a significant degree.
He also relied upon the previous authorities of the Court of Appeal. He said that it had been made abundantly clear that;
“the smuggling of drugs into prison undermines the order of our custodial institutions and causes problems for those who are responsible for supervising prisons and looking after the welfare of inmates.”
That is a view with which the appeal court re-endorsed on this occasion.
What happened in the appeal?
When considering a sentence of 18 months’ imprisonment, the advocate on appeal sought to invoke the drugs sentencing guideline. When that guideline is applied in isolation, it suggests that a sentence of 18 months is manifestly excessive.
Under that guideline, this offence would fall into the significant role Category 4 part of the guideline. Therefore, the starting point should have been a high-level community order.
The Court of Appeal rejected that submission, and made the following observations:
“The drugs guidelines are of course helpful in sentencing offences of this sort, but the reality here is that the mischief is bringing the drugs into prison. That is a very significant aggravating feature and whilst we rely upon the guidelines for some assistance, they cannot determine the final prison sentence to be imposed. In the view of this court, this falls way outside the range which [Counsel] has identified to us today.
The taking into prison of drugs is pernicious. It causes discipline problems within any custodial institution; it endangers the safety of the inmates and staff and adds greatly to the burden of trying to impose discipline.
In the view of this court, having been given full credit for the plea, which he had entered at the earliest opportunity, the total sentence of 18 months cannot be said either to be wrong in principle or manifestly excessive, reflecting as it does a total sentence for three separate offences of bringing different items into prison on this occasion.”
All of our advocates understand the guidelines and broader sentencing considerations. We can be relied upon to obtain the best result for all of our clients.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Jailed for stealing £3,000 but not for stealing £22,000? Why?
A Bad Day in Court?
Several newspapers recently pondered why ‘one woman is jailed after stealing just £3,000 but another who took £22,000 walks free.”
The story was sparked by a tale of two defendants who appeared at the same court centre, on the same day, but faced different judges.
The papers concluded that one was unlucky to have been sentenced by a Judge renowned for being tough on sentence.
Most lawyers know this scenario only too well and given that there is a large margin of appreciation when it comes to sentencing, there may be nothing that can be done about it.
There are a number of scenarios that we can consider when it comes to sentencing.
The sentences were, in fact, appropriate in both cases
It must be remembered that cases which look similar at first blush may, in fact, be greatly different. This is particularly true when a defendant’s offending history is taken into account. Judges will also look at their family and personal circumstances; whether they have expressed remorse; in case such as this whether they have made efforts to repay the money; the effect on the losers of the money; and importantly, if they pleaded guilty and if they did how early they entered that plea.
There are lots of relevant factors that must be taken into account before deciding on the most appropriate sentence to pass in any individual case.
The lenient sentence
In some cases, a great result at sentence may be short-lived. In some instances the Attorney General can consider referring the sentence to the Court of Appeal if it is thought to have been ‘unduly lenient’.
The harsh sentence
If a sentence is either wrong in principle or manifestly excessive, the defendant can apply to appeal that sentence. We will always promptly advice our clients when this scenario arises.
Disparity in sentencing
The court of appeal is not interested in what another defendant before a different court may have received. Sentences must be assessed on their merits, so another person’s good result will not translate into a reduction for a person not treated leniently.
Any disparity in sentencing is, however, a more critical consideration when several defendants are sentenced in the same case.
Slightly more complex issues arise in this scenario, and we will always carefully assess the situation and advise accordingly.
Ultimately, sentencing guidelines are not tramlines, and absolute fairness in sentencing is not always achieved; but there are nonetheless important protections to ensure that judges do not go beyond a proper exercise of discretion.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Can I get legal aid for my criminal case?
If you are arrested or are appearing in court, one of the first things you will probably ask yourself is ‘can I get legal aid?’. Fortunately, legal aid is still available for many criminal cases. Whether you are eligible will depend upon what level of assistance you need and what your financial circumstances are.
At the police station
If you are arrested or are being interviewed under caution, all advice and assistance in the police station can be funded by legal aid regardless of your income.
Other investigations
Many other agencies, such as the Department for Work and Pensions (DWP), interview people before starting court proceedings. In many cases legal aid is available, depending upon your financial circumstances.
If you are not financially eligible then you can pay privately to be represented. Contact us or call us on 020 7388 1658 and speak to one of our expert solicitors to discuss our rates.
At the Magistrates’ Court
Representation in the Magistrates’ Court is now subject to 2 tests:
- The ‘merits test’ considers the seriousness of your case and whether it is in the ‘interests of justice’ for you to be legally represented. This can include the nature of the offence, whether you have previous convictions and whether there is a risk of custody (prison); and
- The ‘means test’ considers your financial circumstances and those of your partner. You will need to provide details of your income and your outgoings. Allowances are made for any children you have, childcare fees, your rent or mortgage, council tax and so on.
If your case passes the ‘merits test’ above you will automatically qualify for legal aid if:
- You are under 18; or
- Your total adjusted income (i.e. yours + your partner’s income, less certain allowances) per year is £12,475 before tax or less; or
- You receive specific state benefits, including:
– Income Support
– Income-based Job Seeker’s Allowance (JSA)
– Universal Credit
– Guaranteed State Pension Credit
– Income-related Employment and Support Allowance (ESA
If your adjusted income is less than £22,325 each year you may also be eligible. However, a full financial test will be carried out to take into account household outgoings.
If your adjusted income is above £22,325 each year then you will not be eligible for legal aid in the Magistrates’ Court.
In the event that you are not eligible for legal aid, you may want to take advantage of our competitive private rates. Contact us or call us on 020 7388 1658 to discuss privately funding your case. We can often offer fixed fees, giving you certainty about the costs involved.
If you are successful at trial and are found not guilty, you can apply for at least some of your costs to be paid from central funds.
At the Crown Court
Representation in the Crown Court is now also subject to the ‘merits’ and ‘means’ tests.
If your case is going to be heard in the Crown Court, then you automatically pass the ‘merits’ test.
In the Crown Court if you exceed the lower financial eligibility threshold then you can still receive legal aid. However, you will be asked to pay contributions towards this funding. The amount of these contributions will depend upon your disposable income. You will be required to provide evidence of your income to the Legal Aid Agency, who will decide what level of contribution you will make. If you are found not guilty, your contributions will be refunded to you.
If you have over £37,500 adjusted income, you will not be eligible for legal aid.
Alternatively, many clients feel that when facing one of the most serious challenges of their life, they would prefer to privately fund their case in order to ensure the highest possible level of service available. Contact us or call us on 020 7388 1658 to discuss your eligibility or private funding arrangements.
Court of Appeal
If you are appealing against your conviction or sentence from the Crown Court, your legal aid will cover the initial stages of the process. It covers the preparation of the grounds and advice on appeal. If you are given permission to appeal, your legal aid will be extended to cover your advocate’s appearance at Court.
Extradition
Legal aid in extradition cases in the Magistrates Court is also subject to the ‘means’ test. If you have an extradition case, you automatically pass the ‘merits’ test. For an appeal to the High Court, there is no means or merits test. Everyone is eligible for legal aid, whatever your circumstances. You can read more about legal aid in extradition cases here.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Delay in Sentencing – Can it work in your favour?
Waiting to know your fate is never easy. When there is a delay in sentencing it gets even harder. There have been widespread reports in the press about spare courtroom capacity, with judicial sitting days at an all-time low. These reports correspond to our own experience and means cases are taking longer to get to court. But can a delay in sentencing work in your favour?
Unfortunately, court delay is often combined with significant delays in investigating and charging defendants to court. This can mean a very long period between the commission of any crime and sentencing.
As advocates, we are increasingly concerned with the effect of delay on the people we represent. We can use several legal principles in an attempt to mitigate the sentence passed.
On occasion, this can work in our client’s favour. It can reduce the length of the overall sentence; allow a custodial sentence to be suspended where it would not otherwise be, or justify a non-custodial sentence in circumstances where custody would be the norm.
What does the law say?
In Prenga [2017] EWCA Crim 2149 the court held:
“We start by considering the nature and extent of the discretion to adjust otherwise lawful sentences where required to achieve justice. It is, in this regard, well established that a sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. The paradigm illustration flows out of the requirement in ECHR art.6 that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one.”
How much time has actually passed?
In Dyer v Watson; K v HM Advocate[2004] 1 A.C. 379; [2002] 3 W.L.R. 1488 Lord Bingham of Cornhill observed that in any case in which it was contended that art.6 was violated by virtue of delay the first step was to consider the period of time which had, in fact, elapsed.
Unless that period gave grounds for real concern it was almost certainly unnecessary to go further “… since the convention is directed not to departures from the ideal but to infringements of basic human rights”.
The threshold for proving a breach of the reasonable time requirement was a high one “not easily crossed”
In Mills (Kenneth Anthony) v HM Advocate (No.2) [2004] 1 A.C. 441 Lord Hope (at [54]) recognised that delay could in an appropriate case justify an adjustment to sentence. One possible rationale for this is the anxiety experienced by a defendant, resulting from the abnormal prolongation of proceedings. Another possible explanation might be that a defendant’s life has changed during the period of delay such that the person who stands to be sentenced is, in terms of character, not the person who committed the offence.
In Attorney Generals Reference No.79 of 2009 [2010] EWCA Crim 338 it was held (per Hughes LJ VP at [19]) that delay:
“… is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly a conviction occurs”.”
Reductions in sentence will be unusual
The judge, nonetheless, emphasised that applications for reductions in sentence would be “unusual”. The authorities relating to delay and art.6 demonstrate that unnecessary delay can amount to mitigation resulting in reduction of sentence. However, questions of delay are also instances of “… the broader question of what a just sentence is”. It follows that delay, whilst being an obvious example, is not the only reason why a sentence might be reduced in order to ensure overall justice.
In R. v Kerrigan (David Joseph) [2014] EWCA Crim 2348, the Court of Appeal was required to consider broad questions of justice in the context of custodial sentences ordered to be run consecutively to existing sentences.
Seven principles
In para [40] of the judgment the court set out seven principles which might apply where a court was imposing sentences for different offences and where they might apply concurrently or consecutively leading to potentially arbitrary results.
For present purposes the seventh principle is relevant and was put like this:
“a judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly”.
In all cases we will ensure that the impact of any delay in sentencing in your case is fully explored. This means that it can be reflected during sentencing.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Courts, Mental Health and a hybrid-order
Ten years for a double killing may not sound a lot, but look behind the headlines and you will find a ‘hybrid-order’.
In a truly tragic case, Samantha Ford drowned her 23-month-old twins in the bath.
Appearing at the Old Bailey for sentence, the Judge, Mr Justice Edis, handed down a 10-year sentence, causing widespread outrage. Longer sentences are routinely handed down for drug dealing and other crimes.
To understand more about this case, we need to look beyond the headlines and examine the facts more carefully.
Mrs Ford carried out the killing to avenge her husband calling time on their marriage. Ford was suffering from a significant psychiatric illness which the defence team explored in detail. The medical evidence ultimately led to a plea being accepted to manslaughter due to diminished responsibility.
A conviction for murder will attract a life-sentence but sentencing for manslaughter will typically attract lower sentences.
There is also a massive clue in the defence deployed in this case, ‘diminished responsibility’.
It is clear that in large part, this crime was due to Ford’s unbalanced mind at the time of the killing.
While the Judge did pass a 10-year custodial sentence, that is not the full picture when it comes to sentencing in this case. The complete sentence passed is referred to as a Hybrid-Order.
Hybrid-orders and the Mental Health Act
A Hybrid-Order comprises mental health treatment, followed by a custodial term to reflect some degree of liability.
Ford was sentenced to a hospital order with a limitation direction, which means that she will be detained in a secure medical facility until such time it is safe to release her from that part of the sentence.
It could be a great many years before this happens.
When Ford is released from medical care, she will then have to serve the unexpired part, if any, of the 10-year sentence (with release half-way through as for any other prisoner) and remain on licence in the usual way.
Cases such as this one illustrate the fragility of the human mind. What drives an otherwise loving mother to kill her two young children is beyond the comprehension of most people.
Samantha Ford is not a danger to the broader public; she was and is a very poorly lady who will be haunted for the rest of her life with the tragic events that unfolded. First and foremost, she requires and will receive urgent medical help.
As specialists in criminal law, we are trained to recognise medical defences and ensure that the full picture is presented to the court. You can read more about mental health and the criminal law here.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk and let us help. We can advise on all aspects of your case.
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Brexit, firearms legislation, and other laws
Everyone will be aware that Brexit is coming and it is likely that we will be leaving the EU on 31st October 2019. Now, details have begun to emerge as to the legal and regulatory position if we leave without a deal. Some of the first information released relates to firearms legislation, for instance. Unfortunately, it raises more questions than it answers.
Given the importance of complying to the letter with firearms laws both here and abroad, those affected must take steps to keep up to date. This is likely to involve quite close monitoring over the next few weeks. The same is true in relation to other areas of regulatory and criminal law compliance.
What is the current situation?
A UK resident traveling to the EU with their shotgun or firearm can apply for a European Firearms Pass. This is a licence, or passport, that allows travel between member states. You must also have a licence from the UK to hold the firearm. Depending on the country you are travelling to, there may be other documents required. All weapons have to be declared to customs and also to the travel company you are using for transport.
What will change?
If the UK leaves the EU without a deal, you will no longer be able to apply for a European Firearms Pass.
What will happen instead?
You will need to check the firearms licensing requirements of the country, before travelling.
This will also apply if you are in an EU country with the firearm with a European Firearms Pass at the time the UK leaves the EU.
What about visitors to the UK?
If you are sponsoring a visitor from the EU, who wants to bring a firearm to the UK, you need to apply to the local UK police force for a visitor’s permit. A permit that is issued before the UK leaves the EU remains valid until it has expired.
Once the UK leaves the EU, the European Firearms Pass will no longer be recognised for EU visitors to the UK. Sponsors of visitors will not need to show a valid Pass.
What should I do?
Nobody knows yet whether the UK will leave the EU without a deal in October. If you intend to travel with your firearm, it is advisable to check the licensing requirements of the country that you are visiting. Different countries have varying lead times for applying for licences. If you want to travel with your firearm, you must make sure you have a proper licence.
Firearms legislation is complicated at the best of times. So, if you are concerned with any aspect of regulatory criminal law and Brexit then get in touch for advice on the latest position.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk and let us help. We can advise on all aspects of your case.
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Witness statements, family proceedings and criminal cases
Can the police use witness statements you make in family proceedings to investigate, and possibly prosecute you for an offence?
That was the key question in M (Children) [2019] EWCA Civ 1364, where the police asked the court to disclose statements made by two people under investigation for terrorism offences.
The appeal concerned issues about the disclosure of that information, and the parent’s rights to silence and against self-incrimination. This is not a new area of law, but this case reviewed the previously established principles. The Court also considered whether they were still compatible with aspects of human rights law.
What had M’s parents done?
This was a case of alleged terrorism offences. The police had asked for disclosure of two position statements from the court to aid their investigations. The police information was that the parents had travelled to Syria and lived there for four years. At the time, Foreign and Commonwealth Office advice was not to do so. They also travelled while ISIS was active in the area.
The Home Office had made the father the subject of a Temporary Exclusion Order; an order made to disrupt the return of British citizens to the UK. It is used where people are suspected of taking part in terrorist activity abroad.
The right to silence?
English law has long recognised the right of a person not to answer questions put to them by investigators. Usually that will be the police, either after arrest or in an interview under caution. Although this right was eroded at the end of last century, so that it is now possible for a jury to draw an adverse inference from that silence, it is still the generally applicable rule.
In this case, as was their right, the parents refused to answer questions put to them by the police.
The privilege against self-incrimination?
An even longer-established right than that of silence is the privilege against self-incrimination. This is the right in civil proceedings not to make an admission that would expose you to criminal liability. It is, in fact, more comprehensive than that and allows silence in the face of questions that would expose you to any penalty.
The Children Act 1989 makes an exception and disapplies the rule in care proceedings such as those in this case. There is a proviso that any information given in those proceedings is not admissible as evidence in a subsequent criminal trial. Effectively sidestepping the rule but with the same effect that no prosecution will occur based on the admissions alone.
When can witness statements in family proceedings be given to the police?
The general position is that material created for family court proceedings is private. However, it may be disclosed where the court gives its permission.
Just because there is a bar on those statements and admissions being used as evidence does not mean they cannot be disclosed to the police. The police would use them to further a chain of inquiry leading to different evidence, possibly of the same facts.
Defendants and others can, of course, refuse to answer questions in an interview based on those statements. Instead of risking an adverse inference as usual, those questions are inadmissible as evidence entirely. They are, therefore, purely investigatory.
Questions which are put based on evidence gathered from the disclosed statements are in a greyer area. They are subject to the usual provisions that evidence should not be admissible if it is unfair; it will be for any trial judge to weigh the circumstances as a whole.
When will that material be disclosed?
The test is set out in Re C (A Minor) (Care Proceedings: Disclosure) [1997] Fam 76. The court set out ten of the factors to take into account, but ultimately, all the circumstances are likely to be relevant.
The relevant circumstances are – the interests of the child; the interests of other children generally; the maintenance of confidentiality in child proceedings; the importance of frankness in child proceedings; public interest in the administration of justice; public interest in prosecution of crime; the gravity of the alleged offence; inter-agency cooperation; fairness to the person accused and incriminated by the statement; and any other material disclosure that has occurred.
The court in M confirmed that this was good law. In the event, the parents’ challenge failed because the witness statements disclosed did not actually contain any admission of criminality. They were simply a description of normal life in Syria away from any conflict.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, 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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Social Housing Fraud; Local Authorities Get Tough
As Airbnb listings in London soar to 80,000, up 400% from 2015 figures, Westminster Council is cracking down on social housing fraud. The Council is targeting those who use the site to unlawfully sublet social housing. As a result, there are over 1,500 investigations underway.
The council recovered £100,974 from a Toby Harman, a social housing tenant who had been unlawfully letting his flat on Airbnb since 2013. He has also been evicted so the flat can be let to someone in genuine need.
Last year, the council recovered 24 homes from unlawful sub-letters.
Prevention of Social Housing Fraud Act
Prevention of Social Housing Fraud Act 2013 made subletting social housing an offence. It is a crime to sublet secure or assured tenancies with local authorities or other registered social housing providers.
A tenant (with a secure or assured tenancy) commits an offence if –
- he or she sub-lets the whole, or sometimes part, of the dwelling,
- the tenant ceases to occupy the dwelling as his or her only or principal home, and
- the tenant knows he or she is acting in breach of the tenancy.
If you act dishonestly, you commit a different, more serious offence.
The law says that it is a defence if the sub-letting takes place as a result of violence or threats toward certain people. A further defence may arise if the person then occupying the house is entitled to apply to the court for a right to occupy or to have the tenancy transferred.
A person convicted of one of these offences is liable to a fine and, if they act dishonestly, could face six months in prison.
They are also liable to a new type of order introduced in the Act, an Unlawful Profit Order.
The making of one of these orders is how Westminster Council were able to recover the money from Toby Harman.
Under this power, the court must consider making an order that the defendant repays any profit to the landlord.
The maximum amount payable under an Unlawful Profit Order is the illicit amount received by the offender minus any rent paid to the landlord. The court may order payment of any amount up to that ceiling, depending on the offender’s current means.
Unlawful profit orders can also be made in civil proceedings, where no criminal charges are brought.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, then please get in touch. Contact 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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Mobile Phones and Driving – The Legal Position
We all know that the use of mobile phones is banned whilst driving.
Or are they?
The answer, according to the High Court’s recent decision in Director of Public Prosecutions v Barreto [2019] EWHC 2044 (Admin), is that it depends what you’re doing with it.
What did Mr Barreto do?
Ramsey Barreto was convicted in the Magistrates’ Court of using his phone to film an accident while he was driving. The prosecution was under s 41D of the Road Traffic Act 1988 and Regulation 110 of the Road Vehicles (Construction and Use) Regulations 1986.
What do these laws say?
These provisions make it an offence to use ‘a hand-held mobile telephone or other hand-held interactive communication device.’
‘Interactive communication’ means ‘sending or receiving oral or written messages, sending or receiving facsimile documents, sending or receiving still or moving images, and providing access to the internet.’
How did Mr Barreto overturn his conviction?
Barreto appealed his conviction to the Crown Court. The Crown Court acquitted him on the basis that videoing on a phone did not come within the definition of the offence. This was because no interactive communication was taking place.
The Director of Public Prosecutions, head of the Crown Prosecution Service, appealed on that point of law to the High Court.
As the High Court pointed out, the Crown had assumed the legislation banned all use of mobile phones. Mr Barreto said that was not the case.
What did the High Court say?
The High Court agreed with Mr Barreto and the Crown Court. He was allowed to go free without a stain on his character. The Court said:
“The legislation does not prohibit all use of a mobile phone held while driving. It prohibits driving while using a mobile phone or other device for calls and other interactive communication (and holding it at some stage during that process).”
Does this mean you can play Candy Crush while you’re driving?
No, probably not. The High Court made the point in their concluding paragraphs, saying:
“It should not be thought that this is a green light for people to make films as they drive. As I have already said, driving while filming events or taking photographs whether with a separate camera or with the camera on a phone, may be cogent evidence of careless driving, and possibly of dangerous driving.”
There is also a related offence (although it carries fewer penalty points) of not being in control of a motor vehicle.
Once again, road traffic law has proved to be one of the trickiest areas of criminal work. Don’t leave your licence to chance. Ensure you use a firm that is fully up to date with all developing legal arguments.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk and let us help. We can advise on all aspects of your case.
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Previous Convictions; Will the Court Know About Mine?
If you are being sentenced, the court will be aware of, and may take into account, any convictions you have. Whether this has any impact upon the sentence passed will very much depend on the date of those convictions and the relevance of any to the more recent offending.
If you plead not guilty, the court or jury can only be made aware of any convictions in certain circumstances. The relevant law is known as the ‘bad character provisions”.
What are the circumstances?
Prior to these provisions being introduced the court could be made aware of any bad character by way of similar fact evidence. So, for example, if a burglar had a particular or unusual way of committing offences, an ‘MO’, the detail could be given to the trial court. Whilst there were other ways in which evidence of bad character could be admitted, the general presumption was against evidence of previous convictions being used.
The new provisions expanded on the old law.
A defendant’s previous convictions may be admitted in court in the following circumstances:
- all parties agree
- a defendant introduces them himself
- it is relevant to an important matter in issue between the defendant and the prosecution
- there is substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
- it is necessary to correct a false impression given by the defendant
- the defendant has made an attack on another person’s character
If you said in evidence when charged with theft, that you would never steal anything, and you had convictions for theft, it would mean the court is likely to be told about them.
If you called the prosecution witness a liar, you might find your convictions before the court.
As with the old law, any convictions based on your ‘MO’ could also be introduced. So, if you have previous convictions for burglary and are now charged with burglary, the prosecution may apply to admit this evidence.
Does this only apply to defendants?
You can also make an application for the bad character of a non-defendant or witness to be out before the court in certain circumstances.
How can we help?
The law in respect of the bad character provisions is extremely complicated. There is extensive case law on the subject and this article is a very brief overview. Some practitioners are of the view that there is little that can be done to avoid bad character evidence being admitted. However, this is not something that we agree with. No concession should be made unless and until a detailed analysis of the circumstances has been carried out.
We can oppose any application on your behalf or make an application for a non-defendant’s character to be introduced.
We have the knowledge and experience to make these arguments on your behalf and guide you through the process.
The introduction, or otherwise, of any convictions may play a crucial part in the outcome of any trial. If you would like to discuss any aspect of your case, please contact John Howey on 020 73881658 or jhowey@jfhlaw.co.uk
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