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Targeting Drink Drivers

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The government has announced its intention to use new roadside breathalysers, in a move that could see a further 6,000 convictions per year for drink driving. At the moment, the breath test procedure is in 2 stages, a person who tests positive at the roadside will be arrested and taken to a police station for a further test to be administered. This is known as the ‘evidential test’ and is the one that forms the basis of any prosecution decision.

The gap in time between the first positive breath test and the one administered at the police station may be significant enough to ensure that a person blows a negative reading – this is due to falling alcohol levels over time (although in some cases the reverse can also happen). While 'back calculation' laws are available, the evidence base is such that they are seldom used for this scenario. Arguably, therefore, some drink drivers go free. The legislation allowing for a definitive roadside evidential breath test procedure is already in place, but today the government has announced a competition aimed at device manufacturers, with the aim of ensuring that suitable devices are approved and in use by 2020.

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Social Media Crime

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With the ever-growing popularity of social media websites such as Facebook, Twitter and Instagram it is important to take a step back and consider your use of them. You need to make sure that you and your children not only control the personal information that is put onto social media but also your behaviour on such sites.

Control your information online

Be aware of the potential for cyber-enabled fraud. Fraudsters can use information obtained from such sites to commit identity theft. Telling everyone about your forthcoming holiday may also be an advance initiation to a burglar – it is surprising how much information we reveal about ourselves over a period of time.

If you have children you also need to be aware of the dangers of persons contacting them and then grooming your child, building an emotional attachment to them with a view to a meeting for the purpose of sexual abuse or exploitation.

Many online games allow for messaging between users – do you know who your child is talking to?

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Getting Tough on Public Disorder

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The Sentencing Council, which is the body responsible for setting sentencing guidelines in England and Wales, has recently published proposed new guidelines in respect to public order offences.

What offences are covered?

The guidelines will apply to the following offences, all of which are to be found in the Public Order Act 1986:

  • Riot
  • Violent disorder
  • Affray
  • Threatening or provocation of violence and the racially or religiously aggravated counterpart offences
  • Disorderly behaviour with intent to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
  • Disorderly behaviour causing or likely to cause harassment, alarm or distress and the racially or religiously aggravated counterpart offences
  • Offences relating to stirring up racial or religious hatred and hatred based on sexual orientation

When will the guidelines come in to force?

The proposed guidelines are being consulted upon, so not until the end of this year at the earliest. However, what we tend to see is that judges look at consultation guidelines, even when they are not supposed to. It makes sense therefore that we keep a close eye on sentencing in this area of law.

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Request for Driver Information

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It may be an offence to fail to provide information as the identity of a driver when you receive a written request to do so from (or on behalf of) the police. If convicted, you face a hefty fine and 6 penalty points.

How long do they have to make the request?

A request must normally be served within 14 days of the offence being committed. There is case law where because a postal strike delayed the mail and it was delivered after the 14-day period, the offence was not committed. If you have any doubt as to whether the notice was served within the requisite time, please contact us for further advice. In some circumstances a valid request can be made after the 14-day period, so do not ignore a request simply because you believe it to be out of time – always seek legal advice.

How long do I have to reply?

From the date the notice is served you have 28 days to reply, or "as soon as practicably after the end of that period".

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Barrister Action will affect Criminal Cases

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You may have read in the press that barristers are on strike, it is inevitable therefore that you may be concerned as to how this will affect your case.

Why are barristers on strike?

It is more or less agreed across the board now that the criminal justice system is on the brink of a major crisis. We have written before about disclosure failings, but there is also serious underfunding of police, prosecution and defence. This crisis has been brewing for many years, and we can now see the real risk of people being wrongfully convicted of criminal offences. The government has brought in to force a new remuneration structure for crown court advocacy that makes a criminal practice no longer sustainable. While some newspapers routinely peddle stories about 'fat-cat lawyers', the reality for most barristers is that they receive relatively modest pay for such a highly skilled job.

Recruitment is difficult for both solicitors and barristers as young professionals look elsewhere for careers, not just because pay and prospects are so woeful (publicly funded work has always been poorly paid in comparison with other areas), but because the working conditions are so poor. This means that soon society will not have the skilled professionals it needs to ensure a properly functioning justice system. For these reasons, barristers have decided not to work for the rates being offered. The bar is calling for urgent action to ensure that our legal system remains the best in the world.

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Burglary and Self-Defence

 

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The law of self-defence is again in the spotlight following the case of 78-year-old Richard Osborn-Brooks who was briefly investigated after the fatal stabbing of a burglar who entered his property. Mr Osborn-Brooks woke in the early hours to find two men in his house and stabbed one of the intruders in the upper body, resulting in death.

So, what are your rights when dealing with an intruder?

Is revenge an option? There is no 'right of revenge' in English law, punishment, following conviction is meted out by the courts.

Can I defend myself or my family from attack?

You do have the right to use reasonable force to defend yourself. There is a mix of statutory and common law provisions that provide for self-defence.

Section 3 of the Criminal Law Act 1967 provides:

"A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."

The government, with much fanfare, enacted section 76 of the Criminal Justice and Immigration Act 2008, to provide for a so-called 'householder defence'. Also, case law (common law) also defines the scope of this defence.

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Throwing Articles into Prisons

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It can be a temptation to family members, and to others perhaps for financial gain, to seek to convey articles into prisons. The chance of being detected is high and possibly for that reason many who might otherwise be tempted to do so, resist. Section 40CB of the Prison Act 1952 makes it an offence to throw articles into prisons, so propelling an item over the fence is no less of a crime than taking it inside the prison when visiting. It may also be seen as a much harder crime to detect. The reference to 'throwing' is however very misleading as it is defined in the legislation as meaning:

'doing anything from outside the prison that results in the article or substance being projected or conveyed over or through a boundary of the prison to land inside the prison.'

So, this covers not only throwing an article over a fence or wall, but also passing an item through a gap, and most commonly attaching an object to a drone and flying it in.

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Choosing a Solicitor - one chance to get it right

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For many people, facing the prospect of criminal investigation or proceedings is a daunting prospect, one that can often inflict a heavy toll not just on themselves, but also on their loved ones. It is therefore essential that proper professional support mechanisms are in place at an early stage.

The Golden Rule

It is never too early to involve a solicitor. It is surprising just how many people put this off to a late stage in an investigation; some people are afraid of the cost (yet ironically legal advice is free at the police station), some think it might be seen as an admission of guilt (it isn't), and the greater group may simply be hoping it will all go away (sometimes it does, but often it does not).

The ‘Right’ Solicitor

It is a trite observation to state that you must choose the 'right' solicitor. However, if your case depends on legal aid funding, a wrong choice may not be easily remedied as courts will need good justification to transfer legal aid to another firm. If you are unhappy with your solicitor then the sooner this is resolved, the better.

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Knife Crime - Sentencing Changes

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Knife crime is very much on the political agenda, with a number of stabbings having taken place over the last few weeks, resulting in deaths and injury, and no doubt the loss of liberty in due course for those responsible. Attention is now focussed on using deterrent sentences to discourage knife possession. The Sentencing Council, which is responsible for setting sentencing guidelines in England and Wales, has today issued a new guideline for knife crime offences.

What offences does it cover?

The guideline applies to offences of:

  • Possession of an offensive weapon in a public place
  • Possession of an article with a blade/ point in a public place
  • Possession of an offensive weapon on school premises
  • Possession of an article with a blade/ point on school premises
  • Unauthorised possession in prison of a knife or offensive weapon (adult guideline only)
  • Threatening with an offensive weapon in a public place
  • Threatening with an article with a blade/ point in a public place
  • Threatening with an article with a blade/ point on school premises
  • Threatening with an offensive weapon on school premises

The guideline does not cover situations where a knife or other weapon is actually used to harm someone. This would come under other offences such as assault or murder/manslaughter. Similarly, it does not include the use or possession of firearms which is covered by different legislation.

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New "Domestic Abuse" Sentencing Guidelines

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A new domestic abuse sentencing guideline has been published today (22 February), giving courts up to date guidance that emphasises the seriousness of this offending.

What is domestic abuse?

There is no specific crime of domestic abuse - it can be a feature of many offences, such as assault, sexual offences or harassment. The guideline aims to ensure that the seriousness of these offences is properly taken into account when such offences are being sentenced and that sufficient thought is also given to the need to address the offender's behaviour and prevent reoffending.

Are there existing guidelines?

The new guideline replaces a domestic violence guideline which was published in 2006. A great deal has changed since then in terms of societal attitudes, expert thinking and terminology. Guidance for courts was therefore in need of revision to bring it up to date. 'Domestic abuse' is now the term used, rather than 'domestic violence', to reflect that offences can involve psychological, sexual, financial or emotional abuse as well as physical violence.

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Dogs - Avoiding a Death Penalty

dog

It is often said that there is no such thing as a dangerous dog, only a dangerous owner. While we often refer to 'dangerous dogs' in criminal law, the actual offences relate to dogs 'dangerously out of control'. Section 10 of the Dangerous Dogs Act 1991 states that:

'A dog shall be regarded as dangerously out of control on any occasion on which there are grounds for reasonable apprehension that it will injure any person (or assistance dog), whether or not it actually does so.’

The penalties for 'dangerous dog' offences are severe, with imprisonment of up to 14 years available where death is caused, but what is not often understood is that an offence may lead to the destruction of the dog. In relation to some offences the court may order destruction, but in others, the court must order destruction unless assured (by imposing strict conditions) that the dog would not constitute a danger to public safety.

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