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Barrister Action will affect Criminal Cases

justice

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

 

burglar

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

prison fence

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

shaking hands

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

stabbing

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

abuse

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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Government Snooping Ruled Unlawful

camera

In a legal challenge brought by the MP Tom Watson, and supported by campaign group Liberty, the High Court ruled that a major plank of the government's surveillance strategy is unlawful (Secretary of State for the Home Department v Watson MP & Ors [2018] EWCA Civ 70).

When Theresa May was Home Secretary, she brought before parliament the Data Retention and Investigatory Powers At 2014, and the current case was a challenge to that law. Initial proceedings were referred to the European Court of Justice who agreed with our courts that the powers were far too extensive. This case is the final judgment from the Court of Appeal.

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The "Right to be Forgotten"

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Redemption has always been an important part of our justice system; you do the crime, you do time. Once your debt is paid, you should then be free to start again, without forever being haunted by ghosts of the past.

We all recognise that there must be limits to this principle, so if convicted of murder or rape, you are unlikely ever to be able to expunge the past. But for relatively minor offending, or offending so far in the past to render it irrelevant, one might expect that you could move on.

Before the internet age, moving on was possible, local news was soon forgotten, or people could move away and start again. But now, with the growth of online news and the ability of almost anyone able to publish almost anything, the picture is different. Powerful search engines such as Google ensure that if the information is out there, there is a method of finding it.

So, to counteract this, people now speak of a 'right to be forgotten', and this is where data protection laws are being utilised.

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Is it Lawful to Hit a Child?

crying

Laws that criminalise unlawful violence date back to 1861 and are used every day in criminal courts to support prosecutions. Despite what might appear to be an obvious legal position, the question is often asked as to whether, despite those laws, it is permissible to 'smack' a child. The simple answer is that it is lawful to chastise a child by smacking, although the extent of that provision needs explaining in more detail below.

Perhaps surprising to many is the fact that the UK is only one of two places in the European Union that permits this state of affairs (the other being the Czech Republic). This week the devolved government in Wales launched a 12-week consultation, with proposals to outlaw all smacking of children. The minister for children and social care said:

"Our knowledge of what children need to grow and thrive has developed considerably over the last 20 years. We now know that physical punishment can have negative long-term impacts on a child’s life chances and we also know it is an ineffective punishment.

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Landlords to Face Additional Punishment

 

housing

The goverment has announced that it intends to bring into force a number of provisions contained in the Housing and Planning Act 2016. From 6 April 2018 the Act will allow local authorities to apply for a banning order where a landlord has been convicted of a "banning order offence."

What is a banning order?

A banning order will ban a person from:-

  1. lettting housing in England,
  2. engaging in English letting agency work,
  3. engaging in English property mangement work, or
  4. doing two or more of these things.

Whether that person acts for himself or via a corporate body.

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