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Archive for month: November, 2017

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Domestic Violence Protection Notices and Orders

Domestic Violence Protection Notices (DVPNs) are commonly issued by police when attending incidents of alleged domestic violence.

Invariably, whatever the rights and wrongs of a situation, and frequently it is quite impossible for this to be correctly judged, the male is the recipient of a DVPN.

The effect of the DVPN is to force the recipient’s removal from the property for 48 hours; this will then be followed by an application to the magistrates’ court for a DVPO which can result in removal from the premises for a further 28 days.

The rationale is to give the supposed victim of domestic violence a ‘breathing space’ in which to seek assistance.

Can You Challenge a Domestic Violence Protection Notice?

Because of the relatively informal way in which DVPNs are issued, there is no realistic way to challenge them before they take effect, so later successful challenges will result in a mostly pyrrhic victory only.

However, you can challenge the application for a DVPO, and we can assist you in that process.

The legal framework for these orders was recently considered by the High Court in the case of Kerr v Chief Constable of Surrey Police [2017] EWHC 2936 (Admin).

The facts, in this case, are typical of many of the cases that we see before the courts, and one particular, albeit by no means an uncommon feature was that the supposed beneficiary of the order, Mr Kerr’s partner of 8 years, did not actively support the making of the order.

The High Court upheld the legislative scheme in its entirety, observing that:

‘…within the experience of a Magistrates’ Court, that victims of domestic violence can be equivocal in their views. There are many reasons why at any given point in time they may express some reluctance to seek to exclude the partner. As [Counsel] correctly observes, that is precisely the danger that this legislation addresses by allowing a short-term emergency order to be made for the protection of a victim of domestic violence, even in circumstances where the victim is not seeking such an order.’

dv blog pic

Is Kerr wrongly decided?

There is no case law cited in the judgment, and it is open to argument therefore whether the High Court considered the recent decision of Herrington [2017] 2 Cr App R (S) 327 where, when considering whether to make a restraining order the Court of Appeal observed:

‘‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with.  Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses.  It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself.  The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make. Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained.  She told them unambiguously that she wants this order revoked.’

How can we assist?

When new judgments come along, they are often presented as offering the complete answer to a legal problem, but in our experience, they seldom do. Recourse has to be had to earlier decisions, particularly ones not considered in any new case. We do not accept anything at face value, preferring to challenge perceived norms and advance alternative arguments.

If you are facing the prospect of a DVPO, then do not hesitate to contact Wheldon Law on 01442 242999 or enquiries@wheldonlaw.co.uk.

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Forensic Testing Scandal – Is Your Conviction Safe?

New details have emerged about forensic testing deficiencies at two of the country’s leading laboratories – Randox Testing Services (RTS) and Trimega Laboratories. Police are currently investigating the exact circumstances and a number of people have been arrested in connection with the investigation.

RTS and Trimega Laboratories handle samples for some of the most high-profile criminal and family law cases, with the accuracy of the tests of paramount importance to people facing criminal prosecution for offences ranging from drink driving to murder.

Home Office Minister Nick Hurd told parliament:

‘Most drug tests from RTS between 2013 and 2017 are being treated as potentially unreliable. RTS was mainly commissioned by individual police forces when investigating criminal offences.’

As a result, it is believed that the results from as many as 10,000 tests could be under question.

laboratory

Is your criminal conviction safe?

If a conviction in your case rested wholly or partially on the reliability of forensic tests, it is essential that you seek further legal advice.

While the Crown Prosecution Service will be carrying out a review into criminal cases, this will take a considerable period of time and many will question whether the body that brought the prosecution in the first place is ideally placed to make decisions as to the safety or otherwise of a conviction.

Those affected will therefore wish to consider whether any further forensic testing ought to take place and even whether or not there are grounds to appeal. All convictions will need to be considered on a case by case basis.

Even if your case did not rely on evidence handled by the two laboratories currently under investigation, this scandal throws a spotlight on the hidden world of forensic testing and calls into doubt results and evidence from other forensic testing providers.

How we can help you

Regardless of whether we handled your case initially, our experienced team of lawyers has the expertise to ensure the safety of your conviction is beyond question.

If you believe that inaccurate forensic testing may have led you to be wrongfully convicted for a crime – including pleading guilty to an offence – please contact Wheldon Law on 01442 242999 or enquiries@wheldonlaw.co.uk.

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What are driving licence endorsements?

The majority of road traffic offences carry obligatory endorsement. Since the abolition of paper counterpart licences in June 2015, any endorsement will be shown on your electronic driving record which is held at the DVLA at Swansea.

What are driving license endorsements?

An endorsement is simply an entry on your driving record. It shows:

  • The type of offence that you have been convicted of
  • The date of the offence
  • The date of conviction
  • The sentence ie. fixed penalty, fine, points, disqualification or, if the offence is a more serious one, some other penalty such as a community order or imprisonment

How long do endorsements stay on your driving licence?

Most endorsements remain current for a period of 3 years from the date of conviction and will physically remain on your driving record for a period of 4 years.  For insurance purposes, the period is 5 years.

There are, however, some exceptions. Endorsements for most drink driving or drug driving offences remain current for a period of 10 years.  This is because if you commit a second offence of this nature within a 10 year period, instead of the normal obligatory minimum disqualification of 1 year for this type of offence, the period of disqualification will be for a minimum of 3 years.  

Special considerations arise in relation to offences such as causing death by careless driving, dangerous driving and causing death by dangerous driving particularly if you happen to be unlicensed or uninsured at the time.

Whilst an endorsement remains on your licence, if you commit a further offence which is dealt with by a court, then the court will be entitled to know about the previous matter and that may affect the way with which the court deals with you for the fresh offence.

Speed Camera

What is a “special reason”?

In some cases, the courts have recognised that it would be disproportionate to disqualify drivers for offences that carry obligatory disqualification and/or endorse their licences for offences that carry obligatory endorsement even though they do not have a defence in law available to them.  

Examples of this would be if you had been accused of drink driving and unknown to you, somebody else had spiked your drink.

Similarly, if you drive a car because you have been told by perhaps the owner that you are covered for insurance purposes and it is reasonable for you to believe that, this could be a special reason for not disqualifying and/or endorsing.  

If a car had been driven only a very short distance in circumstances where it was unlikely to come into contact with other members of the public or if the driver is dealing with a genuine emergency, then again that could give rise to a ‘special reason’. The courts apply this concept very restrictively and if you think that you might fall into this category, you should seek legal advice and representation.  

The general principle is that a ‘special reason’ is special to the facts of the particular case ie. special to the facts which constitute the offence.  It must be a mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence and be one which the court ought properly to take into account when imposing punishment.  It cannot be something that is peculiar to the offender.

How does the penalty points system work?

If you accumulate 12 or more penalty points in any 3 year period running from date of offence to date of offence, you must be disqualified from driving for a minimum period of 6 months unless you can establish that this would cause either you or the people around you such as your family, employer or employees ‘exceptional hardship’.

If exceptional hardship is proven, then this gives the court the power to do something which it could not otherwise do, namely either reduce the otherwise obligatory 6 months disqualification for a ‘totting up’ disqualification or, in an appropriate case, dispense with it altogether.  If you are in this situation, you should seek expert legal advice as these cases are notoriously difficult to oversee

Penalty points for new drivers

Special provisions apply to drivers who commit endorsable traffic offences that carry penalty points within two years of the date that they have passed their test.  

If you commit offences that accrue a total of 6 points or more during this time, the DVLA will revoke your full driving licence and you will have to retake both your theory and practical driving tests.  If you have been unfortunate enough to get penalty points during the time that you have a provisional licence, these will be carried over and will remain on your full licence once you have passed your test.

Do you need legal advice or representation?

If you have committed a driving offence and require legal representation, contact us on 01442 242999 or email us at enquiry@wheldonlaw.co.uk.

Our specialist team of road traffic solicitors have years of experience in every aspect of road traffic law.  We will be happy to advise and assist you and provide representation in court if necessary.

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What if I am stopped by the police and accused of having committed a road traffic offence?

What happens if you are accused by the police of a road traffic offence?

Because you were present at the time that the offence was allegedly committed and have been made aware of it by the police, the likelihood is that you will be reported by the police for consideration of prosecution.  Normally you will then receive a summons or postal requisition by post within six months of the date of the commission of the offence requiring you either to complete a form under the single justice procedure if you are pleading guilty and if the offence is a relatively minor one.  This means that the court could deal with you in your absence by way of a driving endorsement of a fixed number of penalty points, normally three, and a predetermined fine.

If the offence is a more serious one, then you may receive a postal requisition or summons requiring you to attend court on a specific date.  If you fail to do so, without good reason, the court might then issue a warrant for your arrest to bring you before the court.

What happens if you are arrested for a road traffic offence?

If the case is a particularly serious one and you have been arrested and been taken to a police station and possibly interviewed under caution, then you might be charged by the police there and then given a court date.  in those circumstances, you will normally be bailed to attend at court and if you fail to do so again without good reason, you may well commit an additional offence under the Bail Act and will be liable to arrest if the court issues a warrant not backed for bail.

If you have been arrested and have been taken to a police station for interview, you are entitled to free legal advice under the Duty Solicitor Scheme.  You are entitled to have a solicitor of choice and if you are a client of this firm or would like to be a client of this firm, you should ring our office number (01442 242 999) or ask the police to do so to arrange for legal representation whilst you are at the police station. We do operate an out of hours scheme which provides 24 hour coverage for our existing and future clients.

Image result for car pulled over police uk

 

What happens if you commit a driving offence but are not stopped by the police?

If you have committed a driving offence but have not been stopped by the police at the time, then a different procedure is followed.  Typically, this would involve you being caught either on a speed camera or an automatic number plate recognition camera.

As the police cannot know who was driving, the notice of intended prosecution (NIP) will be sent out by the police to the person or company to whom the vehicle is registered at the DVLA at Swansea.

The NIP will set out the details of the alleged offence including:

  • The vehicle registration
  • The date the offence was committed
  • The time of the offence
  • The location of the offence

The registered keeper of the vehicle has a legal requirement to complete the NIP and return it within 28 days.  This is known as a section 172 notice.

The position is straight forward if you were the driver at the material time as all you will have to do is to enter your details.  If you were not the driver, there is a legal requirement on you to notify the police who was actually driving.  If you do not do this within the required period, you, as the registered keeper, will commit the offence of failing to notify the identity of a driver which in itself carries 6 penalty points and a fine.

If you were the driver and the offence is a relatively minor one, you may well receive a conditional offer of a fixed penalty with a fine at a fixed level and an endorsement of 3 or 6 penalty points on your licence.

What happens if someone else is accused of a road traffic offence whilst driving your vehicle?

If you were not the driver, you must tell the police who was driving.  If the registered keeper of the vehicle is a company, it may not be immediately apparent who the driver was, particularly if the vehicle is a pool vehicle.  In those circumstances, the company would be expected to keep records of who was driving the particular vehicle on any given date and if a company were to fail to do that, it may well end up on the wrong end of a prosecution for failing to notify the identity of the driver.

If you as an individual genuinely do not know who was driving the vehicle at the relevant time, you must return the notice of intended prosecution and you should write on it that you do not at this stage know who the driver was.  You can request photographic evidence or other evidence from the police to enable you to help identify the driver and you yourself should do all that you can to try and identify the culprit in the meantime. You need to be aware that if it was not you driving the vehicle, the person who was driving would need to be insured to drive that particular vehicle.

If your vehicle had been stolen prior to the date of the offence itself, in the normal course of events, you would have reported this to the police and would have been issued with a crime number. Clearly you should inform the police of this on the section 172 notice.

What happens if you do not know who was driving your vehicle?

If you were not the driver, once you receive the photographic or other evidence, and still cannot recognise or identify the driver, you should contact the police again and say that you are unable to identify the driver from the photographs and request any further evidence they may have.  If you do not receive any further evidence within 14 days, you should again reiterate that you have been unable to identify the driver and explain that you were not the driver at the time of the alleged offence.  You should then provide the police with a list of all possible drivers such as other insured persons who have access to the vehicle for the police to investigate.

If the police do not accept your claim that you were not the driver at the material time, you yourself may well be summonsed to court for the offence of failing to notify the identity of the driver.

Have you been accused of a road traffic offence?

If so, contact us on 01442 242999 and our specialist team of road traffic solicitors with years of experience in all aspects of road traffic law.  We will be happy to advise and assist you and provide representation in court should that be necessary.

 

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What is laughing gas and is it illegal?

Nitrous oxide – more commonly known as ‘laughing gas’ – is back in the news following a Court of Appeal ruling that the substance is controlled by the Psychoactive Substances Act 2016. The Act makes it an offence to possess psychoactive substances with intent to supply and in limited cases, simple possession is also classified as an offence.

The appeals came about following some cases where judges ruled that laughing gas is exempt from control under the Act.

The issue on appeal was whether nitrous oxide was a ‘medicinal product’, as if it were, the offence would not have been committed.

In four cases before the Court of Appeal, two appellants were convicted after trial and the other two had pleaded guilty.

The court ruled:

‘We are satisfied that in the circumstances of these cases the nitrous oxide in question could not be categorised as a medicinal product and therefore was not an exempted substance. In our judgment, the matter is clear on existing authority.’

 

Two carbon oxide gas cylinders isolated on white.

When is possession of Nitrous Oxide illegal?

The key words of note in the court judgment are ‘…in the circumstances of these cases.

To answer the question, we need to understand a little more as to the purpose of the 2016 Act. The Act applies to substances by reference to their effects, rather than listing individual chemical composition. It is drafted to exclude from criminal sanction their supply for purposes other than recreational use.

In the first instance, it may be assumed that because nitrous oxide is undoubtedly used for medical purposes, it would fall squarely within the medicinal products exemption in the Act.

Importantly however, an ingredient of the offence which must be proved by the prosecution is that the defendant in question intended to supply the substance for consumption for its psychoactive effects.

We therefore have a situation where liability under the 2016 Act depends not solely on the chemical composition of the product, but on the intent of the person in possession.

In one of the appeals, the court held:

‘…the purpose for which it was intended to supply the canisters was purely recreational with nothing whatsoever to do with health. This last feature coupled with the fact that the gas was intended to be used in circumstances which were not beneficial to health, indeed import some risk to health, was sufficient to take it outside the definition of medicinal product whatever label may have been on the boxes in which the canisters were originally packed.’

The case-by-case approach entails the possibility that different products with precisely the same chemical composition may fall within or outside the definition of medicinal product depending on the circumstances of the individual case.

These cases illustrate well the complexities of the criminal law, differences of scientific opinion and the fact that often it takes some time for an appeal court to clarify the law.

In relation to nitrous oxide, it may be that further appeals will follow, particularly if scientific opinion shifts over time.

Seeking legal advice about whether laughing gas is illegal?

For any advice about drug offences contact Wheldon Law on 01442 242999 or at enquiries@wheldonlaw.co.uk

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Lights, Camera, Action – Modern Policing

Lights, Camera, Action – Modern Policing

 

Police forces across England and Wales are preparing for a rollout of ‘Body-worn Cameras’, and the government has announced that prison officers will shortly be assisted by this new technology.

 

What are Body-worn Cameras?

 

BWCs are small recording devices, very similar to a GoPro, which allows for constant audio and video recording in an unobtrusive manner.

 

The evidence from these cameras can be used to support a prosecution, and some argue that with officers and others aware that their actions could be caught on camera, it will result in a positive effect on behaviour.

bwc (1)

Is behaviour calmed when a camera is present?

 

It is usually accepted that we behave better when being watched, for example, we are less likely to speed past a roadside camera or get involved in unlawful activity.

 

In 2011, researchers at Newcastle University posted pictures of a pair of male eyes and the caption, “Cycle Thieves: We Are Watching You.” Bike thefts decreased by 62 percent in those locations — and not elsewhere.

 

A study in Rialto California (USA) in 2012 appeared to show dramatic changes in police behaviour. Complaints against police officers were down 90% compared to the previous year. Critics, however, have been sceptical of this study, in part because only 54 officers participated.

 

That caution did not result in a slowdown of BWC deployment and by 2015 95% of US large police departments had deployed BWC or had committed to doing so.

 

Now, police forces in England and Wales are following suit.

 

Latest research

 

The Rialto findings seemed to accord with common sense, but a new 18-month study of more than 2,000 police officers in Washington (USA), published on 20th October has disclosed ‘almost no effect’ on police officer behaviour.

 

Are BWCs a waste of money then?

 

This is a controversial question, and there may be many reasons for the Washington findings.

 

Other arguable benefits of BWCs are:

 

  • Detecting rogue officer behaviour after the event
  • Accurate recording of evidence
  • Building community trust in the police – In another new study that will be published in the November 2017 issue of the journal Policing, researchers interviewed 249 people who had recent encounters with officers wearing cameras. Those who were aware of the cameras perceived the encounters as more “just” than those who were not.

 

Conclusion

 

It would appear that the jury is out as to the efficacy of BWCs, supporters claim that there are definite benefits for both police and public, while detractors cite privacy concerns, sizeable public expenditure and a lack of cogent evidence to support their continued deployment.

 

What is clear to us is that we see the evidential worth of cameras in an increasing number of cases. Such evidence must, however, be analysed carefully, so as not to fall into the trap of believing that ‘the camera never lies’. We often find that video evidence is taken out of context, is distorted, edited and on occasions when it might be thought helpful to the defence, goes missing.
Contact Tina Wagon on 01442 242999 or tina@wheldonlaw.co.uk if you would like to discuss any criminal law issues.