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  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.
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?
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:
Numerous changes to offences concerning:
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.
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:firstname.lastname@example.org for prompt advice.
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  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:email@example.com for instant assistance.
If you are being sentenced for an offence, the court will be aware of, and may take into account, any convictions you have. Whether this has any impact upon the sentence passed will very much depend on the date of those convictions and the relevance of any to the more recent offending.
If you plead not guilty, the court or jury can only be made aware of any convictions in certain circumstances. The relevant law is known as the ‘bad character provisions”.
What are the circumstances?
Prior to these provisions being introduced the court could be made aware of any bad character by way of similar fact evidence. So, for example, if a burglar had a particular or unusual way of committing offences, an ‘MO’, the detail could be given to the trial court. Whilst there were other ways in which evidence of bad character could be admitted, the general presumption was against evidence of previous convictions being used.
The new provisions expanded on the old law.
A defendant’s previous convictions may be admitted in court in the following circumstances:
• all parties agree
• a defendant introduces them himself
• it is relevant to an important matter in issue between the defendant and the prosecution
• it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant
• it is necessary to correct a false impression given by the defendant
• the defendant has made an attack on another person’s character
If you said in evidence when charged with theft, that you would never steal anything, and you had convictions for theft, it would mean the court is likely to be told about them.
If you called the prosecution witness a liar, you might find your convictions before the court. As with the old law, any convictions based on your ‘MO’ could also be introduced. So, if you have previous convictions for burglary and are now charged with burglary, the prosecution may apply to admit this evidence.
Does this only apply to defendants?
You can also make an application for the bad character of a non-defendant or witness to be out before the court in certain circumstances.
How can we help?
The law in respect of the bad character provisions is extremely complicated, there is extensive case law on the subject and this article is a very brief overview. Some practitioners are of the view that there is little that can be done to avoid bad character evidence being admitted – this is not something that we agree with, no concession should be made unless and until a detailed analysis of the circumstances has been carried out.
We can oppose any application on your behalf or make an application for a non-defendant’s character to be introduced.
We have the knowledge and experience to make these arguments on your behalf and guide you through the process.
The introduction, or otherwise, of any convictions may play a crucial part in the outcome of any trial. If you would like to discuss any aspect of your case, please contact Kieran Dunphy firstname.lastname@example.org
New legislation concerning Drug-Driving offences prohibits driving and other driving-related activities if the person in charge of the vehicle is ‘unfit through drink or drugs’, the definition of unfit is that his or her ability to drive ‘properly’ is impaired. It is not a traffic offence simply to be under the influence of drugs, nor is there currently any drug-driving ‘legal limit’ such as with alcohol.
Driving Behaviour – Was the defendant arrested following an accident, moving traffic offence or erratic driving behaviour? Could unfitness at the time be implied by the driving behaviour? In such cases the evidence of lay or police witnesses as to the driver’s behaviour may be adduced.
For a prosecution to succeed, they need to provide the following evidence
1 – Witness evidence as to reasons for the stop (e.g. police/lay witnesses to erratic driving, accident etc and condition of driver when stopped, why drugs are suspected)
2 – Full details of defendant’s performance on impairment tests (copies of pro-forma e.g. form MG-DDG)
3 – Statement from FME as to findings of impairment and a condition which may be due to a drug
4 – Forensic evidence of presence of active drugs or active metabolites in the blood sample
Have you been stopped by the police, questioned, interviewed, on bail or charged with this offence? Call Kieran Dunphy on 01603 280262 or email email@example.com for initial free advice
Reproduced with kind Permission of Emmerson Associates
What are you talking about?
Monkey dust is a synthetic drug, a type of new psychoactive substance. It is similar to other cathinone drugs such as MDPV, methylone and magic crystals.
In the USA it is known as “Zombie Dust” or Cannibal Dust” due to one of the reported effects of the drug being users trying to eat their own face.
I’ve never heard of it?
The drug has been around for a while and was formerly one of the drugs referred to as “legal highs”.
In recent months, it has started to become more prevalent in some areas of the country and, undoubtedly, the use of it will spread.
In the Midlands, there have been news reports of people climbing buildings and trees and running into traffic while under the influence and attacking people who approach them.
What does it look like?
The drug is a white powder.
What are the effects?
It is a psychoactive substance with effects similar to PCP such as high body temperature, paranoia, agitation and hallucination; it can also make users impervious to pain. Frequently users have no recollection of their behaviour while under the influence of the drug.
Heavy users have reported the appearance of lesions on the skin and a smell of prawns or vinegar from their sweat.
Lecturers from Staffordshire University, Sarah Page and Em Temple-Malt spoke with people in Stoke-on-Trent about the use of NPS. One user said that he had been arrested for a breach of the peace after “arguing with a garden gnome”.
Although amusing, it demonstrates the irrational behaviour that can take place while under the influence, the drug is said to be “worse than spice” and can cause extreme violent behaviour.
Is it illegal?
Yes. Monkey Dust is a Class B drug. This means that it is illegal to possess and also to sell, give away or possess with intent to supply it. Possession can result in up to 5 years imprisonment while supply offences carry up to 14 years imprisonment.
How can we help?
If you are accused of being in possession of the drug or supplying it we can advise you at the police station and at court. Early advice is essential; to discuss any aspect of your case please contact Kieran Dunphy 07748 638752 e: firstname.lastname@example.org
It’s Health and Safety gone mad!
Or is it?
The Health and Safety Executive is the national regulator for workplace health and safety.
Interestingly, on its website, there is a page for debunking health and safety myths, such as the one where flags were banned from civic cars for “health and safety”, or the removal of alcohol from a workplace Christmas party.
So, what do they do?
The HSE “mission” is to prevent work-related death, injury and ill-health. They concentrate on the most serious risks, targeting industries with the greatest hazards and sectors with the worst risk management records. They provide free guidance and advice, inspect premises and investigate when things go wrong.
What powers do they have?
They can inspect premises, speak to relevant people, observe workplace activities, check whether risk controls are effective and identify any breaches. In doing so, they can consider taking enforcement action and investigate any potential offences.
What is enforcement action?
They can provide advice, serve notices, withdraw approval or vary licences, conditions or exemptions. More seriously they can issue cautions or prosecute. If you do breach any regulations you can be made to pay for the time it takes the HSE to help you to put the breach right.
The HSE will investigate serious work-related incidents, injuries or cases of ill-health, in line with its incident selection criteria, as they do not investigate everything that is reported to them. Cases can be brought against corporate bodies and in some cases individuals as well.
What sentence could I get?
There aren’t any specific sentencing guidelines for health and safety offences other than corporate manslaughter although they are likely to come under general offence guidelines that are currently being consulted upon.
Air Liquide (UK) Ltd was fined £160,000 after pleading guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974. Members of their emergency response team were appropriately dressed to dispose of redundant gas bottles; however, one was dropped spilling highly hazardous fluid to the floor. Vapour drifted to 2 unprotected workers affecting one so severely he collapsed to the floor.
Bartram Manufacturing Ltd pleaded guilty to breaching section 2 of the Health and Safety at Work etc. Act 1974 and was fined £82,000. A forklift truck reversed into a stack of roof trusses which fell onto an employee causing multiple fractures.
WE Rawson Ltd was fined £600,000 for breaching section 2(1) of the Health and Safety at Work etc. Act 1974. An employee died following crush injuries received when he attempted to free a stuck package from a packaging machine. The HSE found the company failed to take measures to prevent access to the danger zone between the moving conveyers.
Simon Thomerson of Clearview Design and Construction Ltd was jailed for eight months following the death of two labourers employed by him when they were involved in an explosive fire within a work unit. He pleaded guilty to breaching section 2(1) of the Health and Safety at Work etc. Act 1974.
How can we help?
Even though a case may be investigated by the HSE rather than the police you can still be under investigation for criminal offences that can lead to imprisonment or very substantial fines for companies.
You need expert advice from the outset which we can provide. To discuss any aspect of your case, please contact :
Kieran Dunphy 07748 638752 E:email@example.com
Taking Offences into Consideration – The Issue of TICs
What are TICs?
TICs are offences to be taken into consideration at the time of sentencing.
When would I be asked about them?
If you have pleaded guilty to an offence or are expected to, or are due to be sentenced, you can admit other offences and ask for them to be taken into consideration upon sentence.
The police may also approach you and ask if you want to accept any TICs. It is crucial that you obtain legal advice as acceptance of TICs does have consequences and there are risks.
You will be spoken to under caution, if you do admit other offences and the police and prosecution agree, a schedule of the offences will be prepared and placed before the court. It is then for the court to decide whether or not to take them into account.
On the positive side, the court will consider the fact that you have assisted the police and shown a genuine desire to “wipe the slate clean”. Any consideration taken of the TICs will result in a difference to your sentence, but this may not be as much as if you were sentenced separately for that offence.
On the negative side, the acceptance of TICs may result in a greatly increased sentence as they are treated as an aggravating feature, especially if there is a large number. The total sentence imposed has to reflect all of the offending behaviour. You can also be ordered to pay compensation in relation to TICs. Also, you will never know if those offences would ever have been linked to you, so you may be admitting more than could ever be proved. This is in effect a simple trade off, peace of mind versus looking over your shoulder wondering whether the past will catch up with you.
If you wish to wipe the slate clean it is important to ensure that all outstanding offences are admitted, otherwise you may not receive any discount if a future prosecution is brought. In the recent case of Murray  EWCA Crim 1252 the court observed (citing an earlier case of McLean  EWCA Crim 170):
“It seems to us however that this appellant must have made a conscious choice not to disclose the July 2014 matter in the hope that it would go undetected. In those circumstances he cannot now claim to be sentenced as if both matters should have been dealt with together in January 2015. To permit that to happen at this stage would be unjust to the public interest in giving the appellant an undeserved, uncovenanted bonus. This case therefore is a salutary illustration of the benefits which can accrue to offenders from making voluntary admissions of additional offending and the risks that they run if they choose not to do so.”
What sort of offences can be considered?
Similar offending is likely to be accepted as a TIC. An offence is unlikely to be accepted as a TIC if –
If I admit further offences will they definitely be TICs?
Not necessarily. Admissions in the circumstances above may lead to further criminal charges being brought against you, this is why legal advice is important.
How can we help?
Any advice as to whether to accept TICs or not is likely to be dependent on both your personal circumstances and the offences involved. We have vast experience in providing such tailored advice, to discuss any aspect of your case, please contact Kieran Dunphy or Sally Dale E: firstname.lastname@example.org or call us M: 07748 638752
Today (7 June 2018), the Sentencing Council has published new guidelines for judges and magistrates for when they are sentencing offenders who have breached court orders. The guidelines provide a clear approach which will mean a tightening up of the way courts deal with offenders who have not complied with a wide range of orders such as suspended sentence orders, community orders, restraining orders and sexual harm prevention orders.
It is the first time there have been comprehensive guidelines setting out a consistent approach for courts to use and they will help ensure that if an offender breaches a court order, sentencers impose appropriate penalties according to the seriousness of the breach.
What breaches are covered by the guideline?
• Breach of a Community Order
• Breach of a Suspended Sentence Order
• Breach of Post Sentence Supervision
• Failing to Surrender to Bail
• Breach of a Protective Order (restraining and non-molestation orders)
• Breach of a Criminal Behaviour Order and Anti-Social Behaviour Order
• Breach of a Sexual Harm Prevention Order and Sexual Offence Prevention Order
• Failing to Comply with Notification Requirement
• Breach of Disqualification from acting as a director
• Breach of Disqualification from keeping an animal
When does the guideline come in to force?
The guideline will come into effect in courts on 1 October 2018.
Is there a change in approach?
The guidelines will also tighten up courts’ approach to dealing with these breaches. Courts are required to follow guidelines and these guidelines closely reflect legislation and define more clearly appropriate court responses to breaches.
For example, in relation to suspended sentence orders, legislation states that they must be activated – i.e. the offender will be sent to prison – in the event of a breach unless it would be unjust to do so. The guideline gives clearer guidance on this consideration, and offenders will now not get opportunities to avoid their sentence being activated. For activation to be considered to be unjust, there would need to be new and exceptional circumstances – not present at the time the order was imposed – that prevented them from complying with the order. This might involve for example the offender taking on caring for a disabled relative which greatly affects their ability to comply with an unpaid work requirement.
The guideline also covers breaches of orders imposed to prevent particular behaviour or protect individuals or groups from it, such as sexual harm prevention orders and restraining orders. The guidelines prompt courts to look at an offender’s motivation and intention in committing a breach to assess the seriousness of the breach. The guidelines also instruct courts to look at any harm caused, and for the first time in a guideline, the risk of harm being caused.
Including a focus on risk of harm for such breaches helps ensure appropriate sentences are imposed where a breach presents a serious risk of harm to the public, without any actual harm needing to have occurred. This could include for example a sex offender who fails to comply with notification requirements with the intention of evading detection in order to commit further offences.
Sentencing Council member Julian Goose said: “Court orders are there to protect individuals and the wider public from particular types of offending or continuing criminal behaviour by offenders. Making sure that offenders comply with court orders is crucial in reinforcing public confidence in sentencing. Where offenders do not comply, the public have a right to expect that this is properly addressed by the courts. We are giving courts clear guidance on what action should be taken against those offenders who ignore court orders so that they are dealt with robustly and consistently.”
Will more people go to prison?
The Sentencing Council conducts research to assess the impact of its guidelines on future sentencing practice. This is a difficult task and the findings are subject to many caveats, however, the following pattern emerges:
Protective orders: ‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. There are two exceptions which may lead to higher sentences for some breaches of a restraining/non- molestation order.’
Criminal Behaviour Order: ‘In general, the sentencing ranges have been set with current sentencing practice in mind and therefore it is not anticipated that there will be any impact on prison and probation resources in the majority of cases. The exception is for the most serious breach cases that fall in categories A1, A2 and B1, where there has been an extension to the category ranges, and also at the bottom of the distribution where there may actually be a reduction in sentence severity.’
Breach of notification requirements: ‘A review of transcripts of cases has confirmed that current guidance is not considered adequate by sentencers to address offences falling within the top end of seriousness. The new guideline is more prescriptive and as a consequence it is possible that there may be more sentences at the top end of the guideline range.’
Suspended Sentence Orders: ‘…it has not been possible, (and it is not advisable), to calculate any informative or realistic estimate of the guideline on sentencing practice or the subsequent impact on prison or probation services.’
Breach of disqualifications: ‘…any potential impact would be minimal.’
Failing to surrender to bail: ‘The new wording and format of the guideline regarding consecutive sentences is considered to be in line with the existing guideline, and therefore is not anticipated to have an impact on prison or probation resources.’
In our experience sentencing guidelines often do lead to unintended rises in sentence length, possibly due to a lack of understanding, something our advocates are acutely aware of.
How can Dale & Dunphy help?
If you need further advice in respect of any potential criminal matter please contact
Kieran Dunphy or Sally Dale e:email@example.com or Tel: 01603 280262 / 01842 769109