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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.

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  office@dale-dunphy.co.uk 

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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 office@dale-dunphy.co.uk for initial free advice

Reproduced with kind Permission of Emmerson Associates

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Monkey DustDale and Dunphy SolicitorsThe cannibal drug that makes you smell of vinegar and prawns

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: office@dale-dunphy.co.uk

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.

 Investigations

 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. 

 

Recent cases

 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:office@dale-dunphy.co.uk