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Archive for month: October, 2017

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A guide to appealing against a sentence

The sentencing process is the beginning of the end for many defendants, as they can receive and accept their punishment and prepare to move on with their lives.

However for some, the uncertainty may not be over as an appeal may be looming.

Who can go about appealing a sentence?

The Attorney General and Solicitor General have the power to apply for leave to appeal sentences for some offences to the Court of Appeal, as the sentence is regarded as ‘unduly lenient’.

The Attorney General may become aware of the case because the prosecution has referred it for consideration, or because any other person has brought it to their attention.

What offences does this apply to?

There is a long list of offences which may be referred for consideration, including:

  • Any offence triable only on indictment, for example, murder and robbery. This provision includes youths tried summarily for indictable only offences.
  • A range of terrorism offences

Is there a time limit for appealing a sentence?

A notice of appeal must be filed with the Court of Appeal no later than 28 days after the sentencing hearing. There is no power to extend this limit.

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What happens if there is an appeal?

The court will apply a 3-stage procedure. The court has expressed its role as follows:

‘We first of all consider the question of whether to grant such leave. It is important in approaching such matters to understand the safeguards that Parliament thought were appropriate to build into the departure from what was then the law that there no question of increasing a sentence arose to the new procedures that enabled such a reference to be made.

Those new procedures required a number of steps to be taken before any such sentence could be increased:

  • The Attorney General had to consider the matter and decide for himself whether he considered the sentence to be unduly lenient
  • The Attorney General then had to exercise his discretion as to whether there should be a reference because he was given a power to refer and there was no requirement that he should do so
  • The court then had to consider whether to accept and grant leave for the referral

Thereafter the court has to consider whether it considers the sentence to be unduly lenient and the final safeguard is that the court has to determine for itself whether – even if it does consider it unduly lenient – it would be right in the exercise of its discretion to increase that sentence. Each one of those steps was clearly a step that Parliament thought to be a necessary safeguard in changing the law.’

What is an unduly lenient sentence?

It is not easy to spot such a sentence, as the sentencing exercise is always fact specific. Where there are sentencing guidelines in place, it may be easier to identify unduly lenient sentences, but not always. The task is often much more difficult when there are no guidelines, or there is particularly powerful mitigation.

The Court of Appeal test for undue leniency is:

‘A sentence is unduly lenient where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate.’

What happens if a sentence is found to be unduly lenient?

Where the court considers a sentence unduly lenient, it has a discretion as to whether to exercise its powers:

‘Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance: where, in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned’

What are the next steps for appealing a sentence?

After sentencing, your legal team should give you a preliminary indication as to whether your sentence is likely to be appealed, but remember that ultimately, they have no control over this part of the process.

In the event of an appeal, a great deal of work can be done on your behalf to prepare your case for this next stage. Thorough preparation can make all the difference in the success of an appeal.

If you are concerned about any aspect of criminal law or sentencing, then do not hesitate to contact Tina Wagon on 01442 242999 or tina@wheldonlaw.co.uk

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New sentencing changes from 2017 onwards

Over the last few days, the government has announced proposals to classify new offences and increase sentencing for a range of existing offences.

Gareth Hawden, one of our criminal law experts, explains the proposals.

Knife crime sentencing guidelines

Knife crime increased by 20% in the last year alone, prompting the government to look again at key legislation. Possession of a knife increased by 23% in the same period.

New laws will make it an offence to deliver a knife purchased online to a private residential address. All future online purchases will have to be delivered to a collection address where the age of the purchaser can be verified.

Possession of an offensive weapon

Possession of offensive weapons in a public place is already a criminal offence, but changes to the law will see some 19 items including flick knives and push daggers prohibited in private places as well.

The government is proposing some limited defences to these possession offences, such as for cultural, artistic or religious use, plus exemptions such as museum displays.

There will also be a new definition of the term ‘flick knife’ to broaden the number of weapons that are classified into this category.

Violence in schools

It is already an aggravated offence to possess knives and offensive weapons on school premises.

However, the definition of ‘school premises’ does not cover higher and further education establishments such as sixth form colleges or universities. This will be changed to ensure these institutions are also covered by the legislation.

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Threatening behaviour

The government intends to amend the existing offence of threatening with an article with blade or point or an offensive weapon set out in section 139AA of the Criminal Justice Act 1988.

The law currently requires the prosecution to prove that the defendant threatened another with the weapon ‘in such a way that there is an immediate risk of serious physical harm to that other person’.

The government is proposing to strengthen this offence to ensure that if anyone threatens another person with a knife the offence is committed when the victim reasonably fears they would be likely to suffer serious physical harm. This test will be based on how a reasonable person would respond to such a threat and not whether the victim was objectively at risk of immediate serious physical harm.  

Acid attacks and corrosive substances

With violent attacks using acid and other substances on the rise, classifying these attacks as an offence is justified.

The Government proposes to create a new offence of possessing a corrosive substance in a public place. The proposed offence is modelled on the current offence in section 139 of the Criminal Justice Act 1988 of possessing a bladed article in a public place.

It is envisaged that similar defences to the knife possession offence would also apply to the proposed corrosive substance possession offence, such as if the person could prove they had a good reason or lawful authority for having it in a public place.

Secondly, the government proposes to introduce a new offence preventing the sale of the most harmful corrosive substances to those aged under 18. This is intended to be similar to the existing knife legislation and is in response to the significant proportion of known offenders who are under 18.

Introducing this offence would make it harder for under 18s to obtain products containing the most harmful corrosive substances that are of particular concern and which are being used as weapons to inflict life-changing injuries.

Possession of a firearm – UK sentence

The government has identified two particular types of firearms of concern:

  • Large calibre (0.50) rifles
  • Rapid firing rifles

Both types of firearm are currently available for civilian use under general licensing arrangements, but there are concerns about their potential for serious misuse and loss of life if they were to fall into the wrong hands.  

It is proposed that these two types of firearms should be subject to the stricter controls under the existing provisions of section 5 of the Firearms Act 1968, which prohibit a number of types of firearms from civilian use.  

Death by dangerous driving

It is proposed that the maximum penalty for causing death by dangerous driving, or causing death by careless driving while under the influence of drink or drugs, be increased to a maximum of life imprisonment.

If this change is implemented, it will lead to new sentencing guidelines being issued which will likely increase the typical sentence in all such cases.  Very few cases would ever merit a sentence of life imprisonment.

Driving without due care and attention

There is also a proposal to create a new offence of causing serious injury by careless driving.

This is likely to be one of the most controversial proposals as there is friction between the lower level of culpability and unintended harm, which of course can sometimes be significant.

The government appears to want to send out a tough message about certain types of criminal behaviour. It must be remembered however that sentencing is a fact-specific exercise where the personal mitigation of the defendant must also be considered.

In cases where a guilty plea is inevitable, or a finding of guilt has been made, it is our job to present to a court the best possible mitigation to ensure the lowest sentence possible.

If you face any criminal proceedings, in the first instance contact us on 01442 242999 or enquiries@wheldonlaw.co.uk to discuss your case.  

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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.

Appeal from magistrates court to crown court

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 for the Sex Offenders Register?

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 & the Sex Offenders Register

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 you apply to no longer have indefinite notification on the Sex Offenders Register?

An adult can apply after 15 years and a juvenile can 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.

What are the chances of having your indefinite notification lifted?

In our experience there is a notable chance for having your indefinite notification lifted. 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 get removed from the Sex Offenders Register?

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.”

Penalties for Animal Cruelty in the UK

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.

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Drone prosecution UK

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.