Animals – Disqualification from Keeping
For many people, keeping animals as pets is hugely enjoyable. Many people go to great lengths to look after their pets. However, not everybody does, and there are occasions when the courts have to intervene.
Section 34 of the Animal Welfare Act 2006 states that a court may make an order disqualifying a defendant from keeping animals.
When can the order be made?
The defendant must have been convicted of a specified offence under the Act (section 4, 5, 6(1), 6(2), 7, 8 or 9).
The purpose of the order is not to punish the offender; The sole purpose is to protect the future welfare of other animals (Barker v RSPCA [2018] EWHC 880 (Admin)).
When considering the making of a disqualification order regard can properly be had to previous convictions (Ward v RSPCA [2010] EWHC 347 (Admin)).
What is the scope of the order?
Disqualification can include one or more of the following parts:
Part 1
(a) from owning animals,
(b) from keeping animals,
(c) from participating in the keeping of animals, and
(d) from being party to an arrangement under which he is entitled to control or influence the way in which animals are kept.
Part 2
(a) disqualifies a person from dealing in animals.
Part 3
Disqualifies a person –
(a) from transporting animals, and
(b) from arranging for the transport of animals.
Disqualification may be imposed in relation to animals generally, or in relation to animals of one or more kinds.
In R (RSPCA) v Guildford Crown Court (2012) the court held that whilst ordinarily the exclusions contained in [Part 1] must be included as part of a disqualification order, it may be appropriate not to do so if the defendant’s human rights would be infringed.
It is not permissible when making a disqualification order to allow for the keeping of a maximum number of animals (R (RSPCA) v Chester Crown Court [2006] EWHC 1273 (Admin), a case based on section 1(1) Protection of Animals (Amendment) Act 1954, which was couched in the same terms as section 34 of the 2006 Act).
This case also emphasises an important point in relation to the making of a discharge as a way of avoiding disqualification in an appropriate case.
Can an order be avoided?
We realise that orders of this type can cause significant distress and upset; it is vital that all the safeguards in case law and legislation are followed before such orders are made.
If you face proceedings for an offence under the 2006 Act or have been made subject to an order of this type and wish to discuss whether it can be challenged, get in touch with one of our specialist team.
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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The Pre-sentence Report; how does it work?
Pre-sentence reports are an important tool to help Judges and Magistrates when it comes to sentencing. In some cases, a court must order a pre-sentence report (s 156 Criminal Justice Act 2003). A report will be appropriate in many instances when it is not a legal requirement.
The primary purpose of a report is to:
‘…assist the court in determining the most suitable method of dealing with an offender’.
How are they prepared?
The pre-sentence report is prepared by a probation officer. The probation officer will meet with the defendant, either face-to-face if they are on bail or if they are in custody then the meeting will usually take place by video-link.
During the meeting, the probation officer will ask about what happened and why, and assess the defendant’s attitude to the offence. They will also want to know more about the defendant’s background and to establish if there are any particular issues in their life. These could be drug or alcohol problems, problems with accommodation, employment or relationships, any mental health issues, or anything that might have caused the person to offend.
Our view is that clients need to be fully prepared for the report process.
Why is preparation essential?
The report is an opportunity for defendants to advance significant mitigation well in advance of their advocate standing up to mitigate formally on their behalf.
Reports are often (although not always) supplied in advance to sentencing magistrates’ and Judges. Therefore, it is an early opportunity to try and influence, positively, the sentencing outcome.
A Judge will always be looking for signs of regret and remorse, not just because they were brought to justice, but because they have genuine victim empathy and regret their actions.
Report writers will be looking for evidence of insight into offending. That often provides compelling evidence of an individual’s willingness and ability to change behaviour. Such positive signs might weigh heavily in a decision to impose a community penalty as opposed to custody.
In cases where a person does not wish to evidence remorse, for example because they are maintaining their innocence, it will generally be better to say nothing than suggest that they do not care.
It is also vital not to implicate yourself in criminality more severe than for which you were convicted.
Conclusions
The author of the pre-sentence report will recommend what they think is the appropriate sentence. However, the final decision is always with the Judge or Magistrates. They do not have to follow the recommendation of the report.
How we can assist
As you can see, we take sentencing reports seriously. We will offer you detailed guidance to ensure that all opportunities to secure the most favourable sentencing outcome are taken.
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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Online Abuse, Courts Keep Up with Modern Techniques
Online abuse is an ever increasing issue before the Courts. In Chabloz v Crown Prosecution Service [2019] EWHC 3094 (Admin) the High Court dealt definitively with several highly technical legal challenges concerning Communications Act defences.
On 25 May 2018 at Westminster Magistrates’ Court, Alison Chabloz, was convicted of three offences under section 127(1)(a) and (b) of the Communications Act 2003. She appealed her convictions to Southwark Crown Court, but on 13 February 2019 her appeal was dismissed. She then appealed by way of judicial review.
What were the charges?
The first two charges involved the sending of a message or matter that was grossly offensive on the internet. This consisted of a hyperlink on her blog to two performances of her antisemitic songs. These songs had been performed by her at a meeting of a right-wing organisation called the London Forum. The meeting had taken place four days earlier, at the Grosvenor Hotel in London. The performances had been video-recorded and then uploaded onto YouTube.
She had not been involved in the uploading. However, she had a free account with wordpress.com and had been allocated a subdomain entitled “tellmemorelies.wordpress.com”. This is a blog which allowed her to publish and manage multimedia content. On this blog she informed those looking at the site that she had performed the songs and pasted a hyperlink. The hyperlink connected with the YouTube site and allowed immediate streaming of the London Forum video of her performances.
The third charge concerned section 127(1)(a), and occurred on 2nd September 2017. The applicant accepted that she had uploaded the video of her performing another song called “I like the story as it is – SATIRE!” onto the YouTube website. This song was grossly offensive for the same reasons.
Appeal points
The claimant did not take issue that the songs were grossly offensive. However, she submitted that the posting of a hyperlink was a neutral act which did not cause an offensive message to be sent. In respect of the third offence, she submitted that she had sent the video to a server in California, which was an inanimate object, so communication with it was not possible.
What did the Court say?
In relation to the hyperlink defence, it held:
“It is possible to approach Issue 1 in three different ways and reach the same conclusion: that, on the facts of this case, the applicant was properly convicted under section 127(1)(b).
The first is by reference to ordinary common sense: the applicant told those looking at her blog that she performed these songs and that her performances had been uploaded onto YouTube. To facilitate their access to those performances, she pasted onto her blog page the hyperlink to the YouTube video. That was not in any sense a neutral footnote or a passive reference to something unconnected to her, but instead a direct signpost to the performance of her own songs. She was endeavouring to widen the distribution of her own material.
It was the applicant who set in train the sending process. She used the internet to put in place an interface between the two websites (the embedded deep link between her blog and YouTube) which ensured the conveyance of the contents of a video from one to the other. The software created a direct link to where the video was stored and enabled immediate access to it by the push of a button. As long as it remained on YouTube, it was accessible via the applicant’s blog.
Moreover, the purpose of setting up the link was to cause the material to be sent. Without the applicant going onto the YouTube site, copying the hyperlink and pasting it onto her own wordpress.blog page, it would not have been possible for others to access the material from that location. The applicant put in place the process by which the video was sent, which is why it can be said that she caused the message to be sent. It is not tenable to argue, as Mr Davies attempted to do, that the Court should ignore all of that and to say that the causing of it to be sent was the act of the visitor to her blog who clicked on the hyperlink.
The second analysis of Issue 1 considers the posting of the hyperlink by reference to the decisions in Collins and in Chambers. As Lord Bingham stated in Collins, the aim of section 21 is to protect the integrity of a public service and to prevent it being a means by which grossly offensive material may be enabled. That is precisely what the applicant was doing here. In addition, the answering machine situation in Collins is directly analogous to the hyperlink here, and, as per Chambers, it makes no difference if the message (in this case the hyperlink to the YouTube video) was stored as content or as a separate message. I agree with [Counsel] that it would be wrong to place undue emphasis on the technology that was involved in achieving the applicant’s aim.
The third approach to Issue 1 is by reference to the non-binding authorities to which Mr Davies himself referred which dealt expressly with hyperlinks, albeit, as I have said, in the context of defamation. In my view, those authorities are not inconsistent with the approach that I have already outlined. On a proper analysis, both the Canadian Supreme Court in Crookes and the European Court of Human Rights in Magyar suggest that what might matter is the connection between the person posting the hyperlink and the underlying message. Was the defendant endorsing the underlying message, or was it just a footnote? There was room in both cases to say that the defendants were neutral hosts of current affairs sites who were not endorsing the particular message in question, but in the present case the answer is plainly different: the applicant was telling people that there was a video of her singing her songs and providing them with the means by which with one click they could access those performances. That was an unequivocal endorsement of the material.
During the course of his helpful submissions, Mr Davies attempted a number of analogies in order to advance his arguments, including references to blackmail letters sent from abroad, messages to the speaking clock and even a libretto prepared without the author’s permission. As my Lady pointed out during argument, in the modern digital age such analogies are unhelpful. The Court has to deal with the modern world as it is, in order to see whether or not the offence is created by this relatively recent statute have captured this particular type of behaviour. That is at root a relatively simple task, and analogies with other means of communication do not assist.”
The Californian server point
Counsel argued on her behalf that a communication could not be made with or to an inanimate object. Therefore, in relation to the third charge, he said that the sending of the video to YouTube’s server meant that there was no communication and therefore no basis for a conviction under section 127(1)(a).
This argument received short shrift from the Court, which held:
“In my view, this argument fails for four separate reasons. First, there is nothing in the Act to provide any support for the proposition that the message had to be received by a human being in order for the offence to have occurred. [Counsel] accepted that the intended recipient did not need actually to receive it, but maintained that there had to be such an intended recipient in the first place. Such a qualification would, in my view, be contrary to the words of section 127, which is dealing with individuals using a public electronic communications system to send or cause to be sent messages of a particular kind, and does not stipulate if, when, how or by whom any such message has to be received.
Secondly, assuming that [Counsel] is right and there had to be an intended recipient, it is wholly unrealistic to suggest that the video uploaded to YouTube was “a packet of data always intended for an inanimate object” (paragraph 39 of Mr Davies’s skeleton). In my view, it was no such thing: it was a video of a song performed by the applicant, uploaded to YouTube by the applicant, intended solely to be seen by other people. So there were intended recipients, and the criminal offence cannot disappear because the applicant used the YouTube platform as her chosen method of communication.
Thirdly, I consider that [Counsel’s] contentions are contrary to Collins. Lord Bingham made clear that the offence was complete when the message was sent to the inanimate answer machine (see [8] of his judgment, which I have cited); what happened thereafter was irrelevant to the offence. Otherwise, as he pointed out, criminal liability would turn on the happenstance of, for example, whether the message was received by an individual or not. Moreover, in the light of Collins and the challenges of the digital age, I would suggest that John Stephenson J’s remark in Treacy v DPP [1971] AC 537, on which Mr Davies also relied, that the sort of demand with menaces required for blackmail “cannot of course be an offence if made to the winds” was not meant in a general way but went specifically to a necessary ingredient of the offence of blackmail. It is not applicable here, save perhaps to note that, 50 years on, it might be thought that sending messages to the winds (or certainly the clouds) was a prescient, if rather romantic, description of the internet itself.
Fourthly, [Counsel’s] submissions are contrary to the approach in Chambers, Kingsley Anthony Smith and Sutherland. There is no reason to depart from either the reasoning or the result in any of those cases. There is no reason at all to distinguish between Twitter and YouTube for these purposes.
For these reasons, the fact that the message in question was sent to the YouTube bunker in California, rather than, say, to the applicant’s next-door neighbour, is irrelevant in law. The offence under section 127(1)(a) was made out when the video was downloaded to YouTube by the applicant with the intention that people might view it. That is therefore the answer to Issue 2.”
How can we help?
Our crime team carefully monitor all developments in case law and legislation to ensure our clients always receive the best advice. At all stages we seek to test the boundaries of current law in order to protect your best interests.
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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None for the road; beware Christmas drink-driving
When people think about drink-driving or drug-driving, it is often based on a narrative that involves a man, leaving a pub late at night, driving erratically and being stopped by the police. This scenario is sometimes the backdrop to an arrest for drink or drug driving offences. However, more often, the story is quite different.
The morning after the night before
The morning after the night before begins with a headache, followed by groans as the body and mind adjusts to the horrible thought that this is not a weekend, and work beckons.
A quick shower revives the senses and off to work you go. Traffic is heavy, drivers as intolerant as ever, and the rain contributes only to a sour mood amongst drivers. Then bang – a relatively minor shunt causing minimal damage, to really kick start the day!
But it is often this kind of minor road traffic incident, causing road chaos and attracting the attention of the police that results in roadside testing for drink and drugs.
The fact that you look great, feel fine, and are not responsible for the accident, will do nothing to mitigate the alcohol or drug levels in your body. Anyone who tells you that you can confidently predict alcohol or drug levels the morning-after is not telling the truth.
What happens next?
What happens next makes the earlier headache pale into insignificance.
An arrest, charge and court appearance resulting in a minimum period of disqualification.
Will you keep your job? What will your partner say?
The safest message remains ‘none for the road’; in some cases, there are legal defences available, and we can discuss these with you. When a defence is not possible, we work hard to mitigate the sentence and get your life back on track.
Your local police force will now have in place its Christmas and New Year drink-driving campaign. Roadside testing will increase, and officers will be extra vigilant.
How can we help?
We hope that you do not need our services over the festive period. If you do, please be assured that we are here, on your side, 24 hours a day.
If you need specialist advice in relation to any driving offences, 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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