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Covid 19 and Business Closure – Legal Obligations

Firstly please put the safety of yourself and others first. Below the current legislation in a brief format is set out. But in essence, stay safe and remember the Duty Of Care you also owe to your employees.

At 2 pm on Saturday 21 March 2020, a law came into force which forced the closure of some businesses.

This law was enacted by virtue of The Health Protection (Coronavirus, Business Closure) (England) Regulations 2020 (and mirror regulations that apply in Wales). The statutory instrument was made in exercise of the powers conferred by sections 45C(1), (3)(c), (4)(d), 45F(2) and 45P of the Public Health (Control of Disease) Act 1984.

Which businesses must close?

Schedule 1 of the regulations state that the following businesses must close:

  1. Restaurants, including restaurants and dining rooms in hotels or members clubs.
  2. Cafes, including workplace canteens, but not including—
  3. cafes or canteens at a hospital, care home or school;
  4. canteens at a prison or an establishment intended for use for naval, military or air force purposes or for the purposes of the Department of the Secretary of State responsible for defence;
  5. (c) services providing food or drink to the homeless.
  6. Bars, including bars in hotels or members’ clubs.
  7. Public houses.
  8. Cinemas.
  9. Theatres.
  10. Nightclubs.
  11. Bingo halls.
  12. Concert halls.
  13. Museums and galleries.
  14. Casinos.
  15. Betting shops.
  16. Spas.
  17. Massage parlours.
  18. Indoor skating rinks.
  19. Indoor fitness studios, gyms, swimming pools or other indoor leisure centres.

Other business types will likely be added to this list if the government adopts more stringent lockdown measures.

What is the penalty if businesses defy the law?

An unlimited fine can be imposed on the business and any officer of the company who has consented or connived etc. so keeping the business open (regulation 3). There are, however, other powers available to local authorities who are in charge of policing compliance with these regulations.  Businesses that breach them will be subject to prohibition notices, and potentially unlimited fines. As a further measure, and if needed, businesses that fail to comply could also face the loss of their alcohol license. More draconian powers are also available under the Public Health (Control of Disease) Act 1984, and further powers will soon be law when the Coronavirus Bill becomes law.

In some cases, injunctive relief may be granted, the breach of which could be punished by up to 2 years imprisonment.

There are also reputational issues that need to be considered.

We can advise on all aspects of criminal and regulatory law, if any business is uncertain as to its legal obligations during this worrying time, please do not hesitate to get in touch with us. But in basic terms,. please don’t flout this law, please put the safety, health and wellbeing of others including your staff first. Without your staff you have no business. We will get through this and be a better society for it.

How can we help?

If you need specialist advice, then get in touch with Kieran Dunphy on 07748 638752  or E:office@dale-dunphy.co.uk and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.

The Forensic Science Regulator regulates forensic scientists in England and Wales. The Regulator ensures that the provision of forensic science evidence across the criminal justice system is subject to appropriate standards. The Regulator has recently said that there are gaps in quality that need to be resolved in order to prevent the use of unreliable evidence in court. In its annual report, it was said that technology has moved on, but some scientists are sticking to the ways the work has always been done. Particular mention was made of DNA and how the ‘old’ way to take anti-contamination precautions was no longer fit for purpose.

In terms of technology and digital forensics, data volume and complexity have massively increased with a substantial amount of data in the cloud. Investigators may be without the tools and methods that are necessary to interrogate the data effectively.

One of the largest commercial providers of forensic services was recently the victim of a cyber-security attack. The company was infected with a ransomware computer virus which disrupted its IT systems. The attack led to the police suspending work with the company. There have been other problems in the industry too, another provider, Key Forensics Services, entered into administration and there was a criminal investigation into alleged irregularities at another company. These issues alone are concerning, and yet the Regulator also says that “forensic science has been operating on a knife-edge for years, with particular skills shortages in digital forensics and toxicology”.

What is being done? 

The government committed to investing around £28 million over a year in order to improve forensic science. There is also a policy to introduce legislation to provide the Regulator with statutory enforcement powers. At the moment, the Regulator does not have any legal power to enforce compliance. No definite plan has yet been put into place although a Private Member’s Bill has been proposed. This delay is said by the Regulator to have resulted in slower progress towards compliance with quality standards, particularly in very small companies and police forces.

An Anonymous Reporting Line has also been launched for the reporting of quality concerns.

The annual report sets out priorities for the forthcoming year, issues include:

  • a lack of accreditation for CCTV comparison
  • contaminated DNA profiles stored on the National DNA Database
  • constraints on legal aid fees and a lack of enforcement powers

How could this affect me?

Forensic science covers a wide range of criminal evidence such as DNA and fingerprints though to the testing of blood for alcohol and drugs.

We will always ensure that prosecution evidence is properly considered and will instruct appropriate experts on your behalf when evidence needs to be obtained or challenged.

How can we help?

If you need specialist advice, then get in touch with KIERAN DUNPHY on 07748 638752 or E: office@dale-dunphy.co.uk  and let us help.

We can advise on a plea, defences and potential sentences in a wide range of circumstances.

 

It is an offence to give false information to the police.

Section 5(2) of the Criminal Law Act 1967 provides:

‘Where a person causes any wasteful employment of the police by knowingly making to any person a false report tending to show that an offence has been committed, or to give rise to apprehension for the safety of any persons or property, or tending to show that he has information material to any police inquiry [commits an offence].’

This offence is punishable with up to 6 months imprisonment.

Before a person can be prosecuted the consent of the Director of Public Prosecutions (DPP) is required. In practical terms, this means that the police cannot charge the offence without the prior permission of the Crown Prosecution Service (as Crown Prosecutors can consent on the DPPs behalf).

That, however, is not necessarily the end of the story.

There is a significant overlap between this offence and the offence of perverting the course of justice, which may also be committed in some instances where a false report to the police is made.

This much more serious offence, very often resulting in a lengthy term of imprisonment, may be considered where the intent behind the initial report was more considered and the consequences of the false report have gone beyond a mere waste of police resources, so for example where a large scale police operation has been put into place, or a person has been arrested as a result of the false report.

If you have made a false report to the police, it is essential to get early advice, preferably before the police discover the truth. The offence of perverting the course of justice is particularly complex in law. Early admission may, in some cases be the best policy, but much will depend on the exact circumstances.

The important thing is to explore all available options as soon as possible so that we can best assist you.

 How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with;

KIERAN DUNPHY on 07748 638752 or E: office@dale-dunphy.co.uk  and let us help.

We can advise on all aspects of your case.

It is well known that drink driving is a criminal offence which will lead to disqualification and in serious cases, imprisonment. For a long time however, there has also been an offence of driving whilst impaired by drugs and now the Government have created a new offence specifically of drug driving.

With drink driving, if a person’s breath, blood or urine reading is over a set limit, then they can be convicted of the offence without any need to prove that their driving was impaired by the consumption of alcohol. However, this is not the case with drug driving and the Government has now created a new offence and is currently consulting with experts to set equivalent limits for a range of controlled drugs. In order to make drug detection easier therefore, the Home Office announced approval of one Drug Screening Device (DSD) in January 2013. There are many different types of DSDs, some of which can be used at the roadside and some of which cannot. The one currently approved can test for up to 6 different drugs, although the current approval is solely for THC, the active compound in cannabis.

This approved device can only be used indoors, therefore Police will only be able to use this device in the Police Station once someone has been arrested and detained. In practice this means that the Police will almost certainly have to continue to use previous methods, (e.g.roadside impairment tests) in order to gather sufficient evidence for an arrest. They can then use a DSD (which tests saliva) at the police station to screen for the presence of drugs followed by a blood or urine test to provide evidence of the level in the person’s system. It is clear therefore, that for the time being proving drug driving will remain more difficult to prove than it is for drink driving.

If you are facing prosecution for drug driving, drink driving or any other driving offence, please contact Sally Dale or Kieran Dunphy E: office@dale-dunphy.co.uk or call 01603 280262 

Dale & Dunphy Solicitors

Diplomatic Immunity

The somewhat arcane topic of diplomatic Immunity has hit the news headlines following the tragic death of 19-year-old Harry Dunn, as a result of a road traffic collision.

It has been confirmed that the wife of an American diplomat has returned to the United States and will not face a further criminal investigation in the UK, after asserting a claim for diplomatic Immunity.

Despite a plea by the Foreign Secretary for Immunity to be waived, so far, the US Government has refused.

What is Diplomatic Immunity?

Diplomatic Immunity, and like procedures, is a protection afforded to foreign diplomats, consular officers, Heads of State (and other leaders) and often their families.  At any given time, over 20,000 people in the UK have a claim to Immunity. Diplomatic Immunity can protect the individual from civil and in some cases, criminal liability. The rules are very complex, and protections may vary.

Article 29 of the 1961 Vienna Convention on Diplomatic Relations states:

“The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.”

Why Is It Offered?

Diplomatic Immunity is designed to protect the sovereignty of foreign governments when conducting official business abroad and acts to protect individuals against a legal process which may be malign or otherwise unfair.

Its origins are rooted in many international treaties and enshrined in UK law via Section 2 of the Diplomatic Privileges Act 1964.

Can Immunity be Waived?

Diplomatic Immunity can be waived by the State but not the person themselves (although there was a recent case in another jurisdiction where this apparently occurred), this means that unless the US Government has a change of heart, that is the end of the matter so far as UK criminal proceedings are concerned.

Where the matter involves an alleged commission of a serious criminal offence, the UK Government will in some instances expel that person from the UK and refuse them future entry.

How can Dale & Dunphy assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with Kieran Dunphy 07748 638752  E: office@dale-dunphy.co.uk  and let us help. We can advise on all aspects of your case.

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 had been convicted in the Magistrates’ Court of using his mobile 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, 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 mobile phone use. 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.

In many circumstances Dale & Dunphy are successful in court in having your fees returned to you.

How can Dale & Dunphy Solicitors assist

If you have been charged or have a summons to attend court for any criminal investigation or prosecution, including mobile phones / driving then get in touch with KIERAN DUNPHY 07748 638752  E: office@dale-dunphy.co.uk and let us help. We can advise on all aspects of your case.

Drug Driving “get arrested.. get your own Solicitor, ask for Dale & Dunphy Solicitors”

oops I’ve been caught

 

Rights – A Mere Illusion?

The EU has published a report, ‘Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings’, that details the extent to which fundamental human rights, in the context of criminal justice, are upheld across the EU.

Why is this important?

Protecting the rights of anyone suspected or accused of a crime is an essential element of the rule of law. Courts, prosecutors and police officers need to have the power and means to enforce the law – but trust in the outcomes of their efforts will quickly erode without effective safeguards to control how their powers are actually used.

What rights should be protected?

Such safeguards take on various forms. Everyone is presumed to be innocent until found guilty by a court of law. People have the right to remain silent and not incriminate themselves. They should be told why they are being arrested or what they are being charged with. They should also be told what their rights are, including that they have the right to a lawyer. In certain situations, people also have a right to interpretation and translation.

What were the findings?

Some of the key findings include:

• The police inform defendants of their rights but practices vary. These range from written to oral information, including leaflets, which may be difficult to understand. Member States should ensure defendants properly understand what their rights are, and provide information in writing and orally as soon as they are a suspect. They should also pay attention to people who may have difficulties due to language or a disability, for example.
• Very often defendants receive minimal or unclear information about the charges against them. This makes it difficult for them to defend themselves. The police should properly, clearly, and fully inform suspects of their crimes and why they were arrested, as soon as possible.
• Receiving legal assistance promptly and directly does not also always occur, particularly for people that have been locked up. Member States should ensure all defendants receive prompt, direct and confidential access to a lawyer before they question jailed defendants.
• Sometimes the police treat suspects as witnesses or informally question them. However, this deprives suspects of their right to remain silent and not to incriminate themselves. Member States should treat all suspects as suspects to respect their rights.

The report also looks at European Arrest Warrants that come from another EU Member State. As well as the issues above, defendants also face rights issues arising from having two countries involved.

• Linguistic differences often make it difficult for defendants to understand their rights when it comes to warrants and their right to consent to be transferred abroad for questioning. Member States should provide translation and interpretation services so that defendants can fully understand the charges against them and what the European Arrest Warrant entails.
• Defendants often have difficulties getting legal representation in both countries. This can be due to linguistic differences, as well as the police’s lack of knowledge about other countries’ legal systems and unwillingness to interfere in another country’s jurisdiction. Authorities in the country that process the warrant should help defendants get legal assistance in the country that issued the warrant. Member States could provide legal association lists when issuing the warrant.

The importance of lawyers

Our lawyers are trained to know your rights and perhaps more importantly, insist that they are upheld. We believe in proactive and robust defence, at every stage of the proceedings.

Whilst the UK fares well compared to some other EU countries, we can never be complacent, time and time again we come across cases where fundamental rights have been ignored, often to the great detriment of the suspect or defendant.

If arrested, suspects must avail themselves of free legal advice and assistance. We are only ever a phone call away.

How we can assist

If you need specialist advice in relation to any criminal investigation or prosecution, then get in touch with KIERAN DUNPHY on 07748 638752 or E:office@dale-dunphy.co.uk and let us help. We can advise on all aspects of your case.

On 16th May 2019 the controversial Offensive Weapons bill received Royal Assent, bringing into law the Offensive Weapons Act 2019.

 Why was this law passed?

 This legislation has been passed in order to assist in stemming the current problems in relation to knife crime and other serious offending involving weapons, whether it will be successful in that regard does, of course, remain to be seen, but there is, without doubt, a plethora of new measures that we are monitoring closely.

 Is it in force now?

 As with most Acts of Parliament different provisions come in to force at different times, so do consult us to ascertain the latest position.

 What are the main changes?

 New offences:

 Sale of corrosive products to persons under 18 – This offence carries a maximum sentence of 6 months imprisonment and may present a significant challenge for some smaller retailers who will need to ensure that comprehensive training is provided to all sales staff to avoid potential prosecution and punishment.

 The offence of having a corrosive substance in a public place – This offence carries a maximum sentence of 4 years’ imprisonment.

 The offence of breaching knife crime prevention order – This offence carries a maximum sentence of 5 years’ imprisonment.

 Sale etc. of bladed articles to persons under 18 – This provision extends existing law but introduces several complex challenges for retailers.  Online retailers will also be affected by these provisions.

 

Knife Crime Prevention Orders:

This new order is essentially a ‘knife crime ASBO’ and is one of the most stringent preventative order ever to have been put on the statute book.  The new laws have been widely condemned, and the implementation (likely to be piloted first in London) will be equally as controversial. We are awaiting further details of the pilot along with statutory guidance on their use.

 Other changes of note: 

  • Amendments to the definition of “flick knife” to cover knives fully opened from a partially open condition and by ‘manual pressure applied to a button, spring or other device in or attached to the knife’. This change will close existing ‘loopholes’ in the current legislation 
  • Prohibition on the possession of certain dangerous knives 
  • Prohibition on the possession of offensive weapons on further education
  • premises 
  • Prohibition on the possession of offensive weapons (numerous statutory amendments) 

Numerous changes to offences concerning: 

  • The offence of threatening with an offensive weapon etc. in a public place etc 
  • The offence of threatening with an offensive weapon etc. on further education
  • premises 
  • The offence of threatening with an offensive weapon etc. in a private place 
  • Search for corrosive substance on school or further education premises 
  • Various firearms offences

Dale & Dunphy will be carefully monitoring the implementation of these new measures to ensure that we are always able to provide up to date and comprehensive advice to our clients.

How we can assist

If you need specialist advice, then get in touch with KIERAN DUNPHY on 01603 280262 and let us help, we deal with all manner criminal offences on a daily basis and have the expertise to get you the best result possible.

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The Court of Appeal has handed down judgment in the case of R v Max Clifford, the disgraced celebrity PR guru who was convicted in 2014 of a number of sexual offences and sentenced to 8 years imprisonment.

 Clifford died in 2017, so why did the appeal proceed?

Section 44A of The Criminal Appeal Act 1968 provides that:

‘…any relevant appeal which might have been begun by him had he remained alive may be begun by a person approved by the Court of Appeal …’

Approval for the purposes of this section may only be given to:

(a) the widow or widower or surviving civil partner of the dead person;

(b) a person who is the personal representative (within the meaning of section 55(1)(xi) of the Administration of Estates Act 1925) of the dead person; or

(c) any other person appearing to the Court of Appeal to have, by reason of a family or similar relationship with the dead person, a substantial financial or other interest in the determination of a relevant appeal relating to him.

 In Clifford’s case, the Court of Appeal consented to his daughter pursuing an appeal that was commenced before his death.

 Was there any point?

An appeal, notwithstanding death, can potentially assist with two main objectives:

(a) Restoration of a person’s good character, and

(b) to assist in resisting civil claims. 

There have been other appeals lodged to clear the name of someone long deceased, the most notable concerning Derek Bentley who was hanged for the murder of a policeman. After many different court challenges, he was finally granted a Royal Pardon. An attempt to clear the name of infamous murderer Dr Crippen hit a stumbling block in 2009 when the Criminal Cases Appeal Commission refused to refer the case to the Court of Appeal.

 The Criminal Cases Review Commission decided James Crippen was not a “properly interested person” in the case and there was no real possibility the Court of Appeal would hear it. “Without an individual who has a real possibility of being approved by the Court of Appeal, there could be no court hearing and so no purpose would be served by the commission carrying out a review of the case,” said a CCRC spokesman.

Did the Clifford appeal succeed?

It didn’t, the court refused leave.

 How We Can Assist

We are experts in criminal law, if you are concerned about a conviction or sentence, even if that is in relation to a person who is no longer alive, do not hesitate to contact us so that we can discuss your options.

Contact KIERAN DUNPHY  m: 07748 638752  e:office@dale-dunphy.co.uk for prompt advice.

Parliamentary Crime 

There have been two entirely different crime stories in the news this week, but both will challenge the court to consider sentencing guidelines and how they ought to be applied. 

Conservative MP Christopher Davies admitted two charges concerning expenses fraud. The sum of money concerned was relatively small, around £700, but it was a surprise to many criminal lawyers that the District Judge hearing the case sent the matter to the Crown Court for sentence. 

The judge said he noted Davies was a man of good character who had shown “considerable remorse” and he did not gain financially from his actions. “However, in my view, these are two very serious offences to which you have pleaded guilty,” he said.

 “The documents you created are troublesome in that they carried a deal of information that you put together which absolutely intended to deceive.”  Zani said that as an MP, a position of considerable responsibility and trust, there was a need to be “meticulous in your claims”.

 When we look at the sentencing guideline for fraud it will tend to suggest that the courts sentencing powers were more than sufficient, so, did the Judge get it wrong?  We will have to see what the Crown Court decides in a few weeks, but it may well be that the Judge had in his mind the case of Chaytor [2011] EWCA Crim 929 involving another MP convicted of fraud at the height of the expenses scandal. The court concluded by saying:  

‘It is difficult to exaggerate the levels of public concern at the revelation of significant abuse of the expenses system by some Members of Parliament. Some of those elected representatives, vested with the responsibility for making the laws which govern us all, betrayed public trust. 

There was incredulous consequent public shock. The result was serious damage to the reputation of Parliament, with correspondingly reduced confidence in our priceless democratic system and the process by which it is implemented and we are governed. This element of damage caused by the appellant (and others) cannot be valued in monetary terms, but it is nonetheless real, and the impact of what has been done will not dissipate rapidly.’  

Given what the Court of Appeal has said concerning parliamentary expenses fraud it should come as no surprise that offences of this type will be treated much more seriously than an ‘ordinary’ fraud.

 Our second case concerns Jeremy Corbyn, the Labour Party leader. On 25th March John Murphy pleaded guilty to common assault, having earlier hit Corbyn with an egg. Being hit with an egg might have once been seen as a political right of passage, but this must now be seen in the light of a much more volatile environment in politics.  In a victim impact statement Corbyn wrote:

 ‘“I was shocked and surprised when the assault occurred as I have always felt safe and secure at the Muslim Welfare House. The assault was completely unprovoked and threatening. 

Whilst I’m determined to make sure I’m able to interact with people as I always have, I now have to be more cautious. I feel these kinds of attacks drive a wedge between elected representatives and those who elected them in the first place. We are now reviewing and increasing my security protection.”

 The Senior District Judge stated that: 

“This is a public servant and attacks on MPs must stop. The message must go out – this must stop.”  Sentencing Murphy to 28 days imprisonment the Judge said: 

“An attack like this is an attack on the democratic process”.

She ruled Corbyn is vulnerable, the attack was premeditated, and the effects have been wide-ranging. 

Ordinarily, this type of assault would not justify a custodial sentence, but these are not ordinary times.  Both cases illustrate that sentencing guidelines must always be seen as a mere starting point in judging the likely sentence. All relevant circumstances must be understood, and an advocate who goes into court underestimating the broader social and political climate is likely to do their client an injustice. 

How we can assist 

We can assist with any criminal law related matter. Please contact KIERAN DUNPHY on 07748 638752 E:office@dale-dunphy.co.uk  for instant assistance.