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Author Archive for: TinaHay

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Can I appeal if I’m convicted before a magistrates’ court?

Many people convicted before magistrates feel aggrieved at the outcome and wish to consider an appeal. A grievance may arise because they think that their case was not prepared correctly, or that the court reached the wrong result.

For many people, a conviction could be a major barrier to employment or travel overseas, even where the offence itself is relatively minor.

The court process is far from perfect. If you have a grievance, it is only right and proper that you consider your options.

What can I do if I’m convicted by a magistrate?

The first thing to remember is that you must act quickly as you only have 21 days from the date of sentencing to appeal your conviction, so you should not delay in contacting us.

If more than 21 days have passed, then get in touch as soon as possible as we can advise on ‘out of time appeals’.

When you contact us, we will also be able to consider whether other avenues of appeal to the high court such are more suitable including:

  • Judicial review
  • Appeal by way of case stated

I pleaded guilty, can I appeal?

You may be able to appeal against ‘conviction’ if you pleaded guilty, but only if your plea is ‘equivocal’. In this instance, there are two remedies that we can explore with you.

Do I need permission to appeal?

An appeal against conviction from the magistrates’ court to the crown court is what is termed ‘an appeal as of right’, which means that you do not need any permission to appeal.

In effect, you are entitled to ‘2 bites of the cherry’ although there are some other issues, such as sentence and costs that you should consider first.

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Is sentence suspended pending an appeal?

Your sentence is not suspended pending appeal, although we can:

  • Apply for bail if you are in custody
  • Apply for any driving disqualification to be suspended

If you have been made subject to a community order, this will need to be complied with, although we will take steps to try and expedite the hearing.

What happens at the appeal hearing?

The crown court, presided over by a judge and lay magistrates rather than a jury, hears the case afresh.

We do however have a valuable opportunity to review what might have gone wrong at the first trial and take steps to remedy any failures.

We can also examine what other evidence ought to the gathered on your behalf, plus how we could potentially defend against the prosecution case.

What happens If I lose the appeal?

Should you lose your appeal, you will be re-sentenced by the crown court and be liable for prosecution costs. We will discuss the cost implications with you in detail before any decision to appeal is made.

It is important to note that the crown court is not restricted to the same sentence imposed by the magistrates’ court, so you may receive a higher penalty. This is one of the risks that you need to balance and one of the reasons why we will at an early stage examine the other avenues of appeal with you (judicial review and case stated).

Can I get legal aid?

Many people are eligible for legal aid and we can direct you to a legal aid provider if you wish. As the legal aid fee is so low, this is not an option we offer.

We will be happy to discuss fixed fee arrangements – the price of high-quality representation is almost certainly much less than you might imagine it to be. If you are successful in your appeal, some of your costs may be refunded.

In the first instance please contact Matthew Chugg on 01442 242999, or by email at matt@wheldonlaw.co.uk

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Notification Requirements and the Sex Offender Register – How to Be Removed From The List

What is the ‘Sex Offender Register’?

There isn’t an actual register and the phrase refers to notification requirements imposed on some offenders convicted of sexual offences. Over 50,000 individuals are currently subject to notification requirements.

The duration of the notification obligation depends on the sentencing disposal and the age of the offender. These are the relevant periods for adult offenders:

What are the notification requirements?

The notification requirements imposed are complex and in the main revolve around:

  • Keeping the police informed of residence and travel plans
  • Changes to personal details
  • Whether they are residing in a household with a child
  • Bank and credit card details and passport/identity documents

If for any reason you do not understand your full obligations in this regard, contact us and we can provide specific advice.

What happens if I do not abide by the notification requirements?

Non-compliance means that you may have committed a criminal offence, which can be punished by up to 5 years imprisonment. Any breach is always treated seriously by a court.

Indefinite notification

It can be seen from the table above that some offenders are subject to the notification regime for an indefinite period.

Until a court judgment in 2012, that meant for life, however, a change in the law now means that some offenders can apply to have indefinite notification requirements removed.

Note that if you are subject to notification requirements for a fixed term, this cannot be reduced.

When can I make that application?

An adult can apply after 15 years a juvenile after eight years. However, if you are also subject to a Sexual Offences Prevention Order, that must be removed before an application can be made in respect to notification requirements. We can assist you with this if required.

How do I go about doing that?

There is a 2-stage process. Initially, there is an application to the police. If the application is refused, you can then appeal to a magistrates’ court.

Presumably, the police always refuse these requests?

You might think so, but in our experience this is not the case. Some police forces have reported an initial success rate of some 66%.

It is not, however, a simple case of writing a letter and asking for the requirements to be lifted. The police have to apply a statutory test and it is vital that your application is drafted professionally to give you the best prospects of success.

In determining an application, the police must:

(1) have regard to information (if any) received from a responsible body

(2) consider the risk of sexual harm posed by the offender and the effect of a continuation of the indefinite notification requirements on the offender

(3) take into account the matters listed below:

(a) the severity of the initial offence

(b) the period of time which has elapsed since the offender committed the offence (or other offences)

(c) where the offender falls within section 81(1) of the 2003 Act, whether the offender committed any offence under section 3 of the Sex Offenders Act 1997

(d) whether the offender has committed any offence under section 91 of the Act

(e) the age of the offender at the qualifying date or further qualifying date

(f) the age of the offender at the time the offence was committed

(g) the age of any person who was a victim of any such offence (where applicable) and the difference in age between the victim and the offender at the time the offence was committed

(h) any assessment of the risk posed by the offender which has been made by a responsible body under the arrangements for managing and assessing risk established under section 325 of the Criminal Justice Act 2003

(i) any submission or evidence from a victim of the offence giving rise to the indefinite notification requirements

(j) any convictions or findings made by a court (including by a court in Scotland, Northern Ireland or countries outside the United Kingdom) in respect of the offender for any offence listed in Schedule 3 other than the one referred to in paragraph (a)

(k) any caution which the offender has received for an offence (including for an offence in Northern Ireland or countries outside the United Kingdom) which is listed in Schedule 3

(l) any convictions or findings made by a court in Scotland, Northern Ireland or countries outside the United Kingdom in respect of the offender for any offence listed in Schedule 5 where the behaviour of the offender since the date of such conviction or finding indicates a risk of sexual harm

(m) any other submission or evidence of the risk of sexual harm posed by the offender

(n) any evidence presented by or on behalf of the offender which demonstrates that the offender does not pose a risk of sexual harm

(o) any other matter which the relevant chief officer of police considers to be appropriate

How can we help you?

The appeal process is both complex and detailed, but we can assist in collating the material necessary to draft and submit an application that has the best chance of success, whether before the police or a court.

Please call Wheldon Law on 01442 242999 for a free initial telephone consultation or email us at enquiries@wheldonlaw.co.uk

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A guide to the new sentences for animal cruelty offences

The government is planning to introduce legislation which will increase the maximum custodial sentence for offences under the Animal Welfare Act 2006. The current limit is six months’ imprisonment, but the new proposals would raise this to five years. This would bring England and Wales into line with other countries’ policies on animal cruelty and correct an issue of proportionality in relation to penalties available for other offences.

Offences covered by the Animal Welfare Act 2006

The Animal Welfare Act 2006 makes all of the following a criminal offence:

  • Causing animals unnecessary suffering (whether intentionally or not)
  • Improperly docking dogs’ tails
  • Causing unnecessary mutilation
  • Administering unauthorised poisons or drugs
  • Participating in the organisation or facilitation of animal fights
  • Failing one’s duty of care to particular animals

The Act adopts a wide definition of ‘animal’, to include any “vertebrate other than man.”

What are the penalties for animal cruelty?

The Animal Welfare Act 2006 allows for a range of penalties, from absolute discharges to custodial sentences up to six months in length.

The statistics on sentences imposed upon people convicted of animal cruelty in 2015 are revealing. In that year, 933 people were convicted of offences under the Animal Welfare Act.

A breakdown of that total reveals the distribution of penalties:

Penalty Number of people
Immediate custodial sentence 91
Suspended sentence 202
Community sentence 341
Fine 177
Conditional discharge 100
Absolute discharge 3
Other 20

 

The RSPCA has investigated the custodial element of that breakdown further. Only three people received the maximum sentence of six months’ imprisonment. Those who received four-month sentences included, it is argued, offenders who gained credit for a guilty plea having committed an offence that potentially warranted a six-month sentence.

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Why some say that the increase in sentences is necessary

The view of the Government and various animal rights organisations is that a disconnect exists between these punishments and the crime of animal cruelty itself. Recent cases which have prompted this change include a man who purchased a number of puppies for the sole purpose of killing them by beating, choking and stabbing. These actions ostensibly require an intent to which the current sentences available to courts do not do justice.

The reforms are also supported by the manifest disparity between penalties for animal cruelty in England and Wales and those in other jurisdictions – the maximum sentences for animal cruelty in Germany and Northern Ireland are three years and five years respectively.

The argument is further strengthened by looking at the maximum sentences attached to other crimes. Fly tipping, for example, carries a maximum sentence of five years’ imprisonment. The same sentence is also the limit for abstracting electricity. Many would argue that the damage and requisite mindset involved in animal cruelty should mean its maximum penalty should at least equal that of these other crimes.

New animal cruelty legislation

The Government is planning to produce a draft of this legislation around the turn of the year. The main provision will be to increase the maximum sentence for animal cruelty from six months’ imprisonment to five years. People who commit the most serious crimes against animals, such as the example mentioned above, may then face a prison sentence which is measured in years and is comparable to a conviction for assault occasioning actual bodily harm.

This policy change follows a previous related announcement on the proposed use of CCTV cameras in slaughterhouses. The timing of both proposals represents an attempt to change the UK’s reputation for animal welfare as it leaves the European Union.

We are here to help

Animal welfare legislation is complex and can lead to a prison sentence, so it makes sense to instruct an expert if you are under investigation or facing prosecution. For assistance with any aspect of animal welfare law, contact us on 01442 242999 or email us at enquiries@wheldonlaw.co.uk.

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A guide to drone law in the UK

Drones and the law

This article examines drones and the legal framework which governs their usage. It focuses on drones which are available to the public and looks at:

  • Potential risks of using a drone
  • The relevant law governing drone usage
  • One’s responsibilities as a drone owner
  • Further caveats for particular types of drone use

What are drones?

The term ‘drone’ refers to any object that can be flown without a human pilot. Drones can range from armed technologies used in military operations to smaller gadgets that can be purchased by members of the public.

These drone models can be controlled remotely and may also be attached to a camera which provides a live-feed to the controller. They can be used educational, professional and leisure purposes and a variety of models are available which vary in size, speed, range and price.

When are drones a problem?

Drones become a problem when they interfere with other objects using the same airspace. They can present a problem for both military and civilian aircraft as despite their relatively small size a collision could have disastrous consequences. Such incidents are more likely to happen when drones are flown too high or too close to areas where aircraft are taking off and landing frequently.

Drone

 

What are the rules?

If you have bought a drone for personal use, then you have some responsibilities relating to your use of that drone. Breaching these duties can result in prosecution.

It is advisable to consult the Civilian Aviation Authority Air Navigation Order 2016, specifically Articles 94, 95 and 241 for guidance. You can download the ‘Drone Code’ from the website www.dronesafe.uk.

You must understand your essential duties as a drone owner, many of which are common sense:

  • Know how to fly your drone safely and do so within the law
  • Understand that the operator of the drone is legally responsible for every flight
  • Keep your drone in sight at all times – ideally you should keep the drone below 400ft
  • Don’t fly your drone over congested areas
  • Never fly a drone within 50 metres of a person, vehicle or building not under your control
  • Ensure any images you obtain using a drone do not break privacy laws
  • Avoid collisions – you should never fly a drone near an airport or close to aircraft

It is a criminal offence to endanger the safety of an aircraft in flight. If you break the rules, you could threaten life and also face prosecution, which in some cases may result in imprisonment or a substantial fine.

Commercial drone licence

If you want to use a drone for commercial purposes – for example as an estate agent to take aerial video of properties for sale –  then you must seek permission from the Civilian Aviation Authority prior to doing so.

It is also expected that you will attend an accredited course which will test your knowledge of and competence with drones.

What are military drones?

Any drone use completed for the Ministry of Defence is regulated by the Military Aviation Authority. Tasks such as surveys at height, photography and multimedia activities are covered by these provisions and one should refer to Regulatory Articles 1600, 2320 and 2321 for specific requirements.

Drones can be fun and useful but come with their fair share of responsibilities. If you follow the principles highlighted above, you will be much less likely to fall foul of the rules and regulations governing this exciting new technology.

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Liar: Defending Cases of Alleged Sexual Assault

Liar, ITV’s new 6-part drama, is gripping the nation, with viewers already reaching their own conclusions as to whether Laura – played by the actress Joanne Froggatt who is better known for her role as Anna Bates in Downton Abbey – is telling the truth when she accuses surgeon Andrew of raping her.

For most of us, this is highly watchable drama as we switch between whom we believe, our perceptions changed over time by the sophisticated script and plot devices.

It is no surprise that some people have formed an opinion on who they believe already, as recent research demonstrated that half of the jurors comprising a trial jury might reach a guilty verdict before even going to deliberate with other jurors.

We know that people are, on occasion, willing to change their minds, just as you might when the plot unfolds. It is vital therefore that a strong case is set out from the start, laying a solid foundation for a successful defence.

Sexual Offences

For our clients and their families, facing an accusation of rape or other sexual crime can be a horrendous experience. So, what is our role and how do we defend such cases?

A reactive and proactive role

We always start with a reactive approach. The complainant states they were drunk, whilst our client states they were in fact sober. They entered the bedroom uninvited says one person, we were invited in, says our client and so on.

We can build the start of a defence with this important work, but we do not have the benefit of the incident in question playing before us on a TV screen, with the truth revealed at the end.

Instead, we have the contrasting versions of the event in question and it might feel as if it is simply one word against another. This is often the case, unless you seek further evidence.

A proactive approach to case preparation is what makes a difference. At Wheldon Law, we always ensure that:

  • All relevant witnesses are traced
  • Any CCTV evidence is secured
  • All forensic evidence is analysed
  • Background checks are completed
  • Details of false allegations are pursued

and even, as already alluded to in Liar, any psychiatric issues are explored.

We also understand the personal toll legal proceedings may take on you and your family and offer a compassionate and reassuring voice at a time when the future may at times appear very dark.

Our services

Wheldon Law Solicitors has decades of experience in defending accusations of sexual assault.

Before entrusting your case to anyone else, come and meet us, get a feel for our work ethic and ensure you are confident that you are receiving the best defence possible.

You only get one chance to get this right, so the alternative is unthinkable.

We offer private client services at affordable rates and legal aid may be available.

If you are arrested for, or charged with, any offence, call us on 01442 242999 or email us at enquiries@wheldonlaw.co.uk.