The aim of the lockdown is to curb contact with others outside your family or ‘bubble’. As far as shooting is concerned this will prevent any organised activity taking place which involves ‘mingling’. Therefore in our view organised game shoots, clay pigeon shooting and shooting at target ranges are not permitted. Most ranges and clay grounds have announced they will close.
Work that cannot be done from home is permitted, and work includes ‘voluntary service’, so gamekeepers and those who control vermin to protect crops or other animals can continue to work, even if unpaid. Rough shooting, deer management and the like can also continue as a recreational activity, provided the other rules concerning social distancing outside of your bubble are observed. The only difficulty for recreational shooters may be the requirement to not travel too far for leisure activities or exercise.
The full details of the new lockdown restrictions in force from 5th November 2020 are here.
There has been a substantial culture shift by police since 2014, in particular, towards the use of voluntary interviews of suspects, rather than interviews under arrest, which are necessarily protected by the Police and Criminal Evidence Act 1984 (PACE). There are a number of reasons for the huge increase in the use of these voluntary interviews:
(1)Â The implementation of Code G of PACE on 12.11.12 which according to ACPO (The Association of Chief Police Officers), requires investigating officers to adopt a more considered approach to the necessity of arresting suspects;
(2) The hard hitting budgetary cuts suffered by the public services, including the police, which were previously cut to the bone are now cutting right through it, have persuaded police that a cheaper option to the costs of arrest and detention would be to focus upon the option of voluntary interviews instead.
It also means that if a particular investigation does not get funding for prosecution during one particular financial year, it can be rolled over onto the next without having to justify why the suspect is on bail for lengthy periods of time. Police are often waiting on forensic tests of computers and phones before they can make a charging decision. Terrorism and sexual abuse allegations take priority in these situations;
(3) The enormous criticism levelled at police when investigating hacking, sexual abuse and serious fraud investigations about the length of bail periods (see above), which attracted critical publicity when it involved individuals in the public eye. The then Home Secretary, Theresa May, was a very vocal critic of lengthy bail periods which led to a 2015 Home Office consultation on the subject;
(4)Â That Home Office consultation led to bail reform provisions within the Policing and Crime Act (in force as of 03.04.2017), more about these new bail provisions later.
Many of our clients have been told the following:
”It’s only a quick interview to hear your side of the story” ….. ”If you insist upon a lawyer attending, it will take much longer and you are likely to be here all day” ….. ”Why would you need a lawyer if you have nothing to hide?” ….. ”We just want you to help us with our enquiries, we are completely impartial”.
We have had any number of clients, including professionals, who have been left with the very firm understanding and impression that police are considering them as potential prosecution witnesses before attending a voluntary interview, only to find themselves served with a summons to attend court as a defendant after the investigation has been completed.
In truth there are not many advantages; you are unlikley to be placed in a police cell, if the investigation results in no further action you can answer any DBS check or a question about whether you have ever been arrested for a criminal offence, truthfully. This is very important for those who work in strictly regulated jobs or professions e.g. If you are FCA authorised.
If the police decide you to arrest you wrongfully, once you have been offered a voluntary interview or more recently when they decide to execute a full S.18 search when the voluntary interview was on going, then case law has decided that you will have an actionable cause against them.
A voluntary interview means that there is little control over the progress and length of the investigation, they are often allowed to drift on and on.
After interview police are supposed to inform you that a decision about the case will be made at a later unspecified date.
We have noticed that increasingly young people, and even adults facing very serious allegations of sexual offences, money laundering and serious fraud are now subject to voluntary interviews.
Very often clients are not informed when a decision to take no further action on the investigation is made, or as stated earlier when they suddenly receive a summons to attend criminal proceedings at court. Instructing a pro active solicitor means that s/he can continue to place pressure on police to come to a decision earlier, and that you are fully informed of the progress of the investigation.
If on the other hand you are interviewed after arrest the PACE clock kicks in, which determines how long you can be detained, you come before an experienced Custody Sgt who is responsible for your treatment and welfare. There are a certain number of specified protections enshrined with that statute.
The Policing and Crime Act 2017 brings in new provisions governing police bail but it’s our belief that in fact police will increase their dependence upon voluntary interviews because of these new onerous and expensive provisions.
The police must now release an individual without bail unless they believe that bail and conditions are attached to that bail are ‘necessary and proportionate’. Those who are bailed are likely to be only bailed for a period of 28 days unless a senior officer agrees to an extension of that period to three months. If they require a further period of three months then they must apply to the Magistrates Court, these are going to be very rare cases.
The FCA and SFO are exempt from these provisions because of the complexity of their often multi jurisdictional investigations and the time that these entail. They can have extensions of up to three months at a time, without a review, and a senior officer can authorise a further period of six months. However, we have noticed that all of our clients currently facing these allegations are not on bail at all.
The police bail provisions and extensions are for police investigation only, and do not apply to the time that the CPS take to consider potential charges.
The Magistrates Court, when seized of an application to extend bail must take the following into consideration:
1. That the investigation and decision to charge is being conducted diligently and expeditiously;
2. That there are reasonable grounds to believe that further time is necessary;
3. That further bail is necessary and proportionate taking into account any bail conditions.
In the public’s psyche, our biggest health fear, cancer, has largely been replaced by a diagnosis of dementia. What can be worse than to suffer the loss memory, control, identity, and the loss of self?
An ever-aging population has meant that dementia is affecting many families, and an appetite to prosecute historic crimes, notably sex crimes, against now elderly defendants, means that dementia has become an increasing feature of our criminal legal system. For some years, the fastest growing sector of UK’s prison population has been men in their 60’s, 70’s , 80’s and even 90’s with a significant number of these serving lengthy terms for offences committed decades ago.
So how do our criminal courts cope with those defendants who, by the time of trial are suffering, or claiming to be suffering from dementia, severe or otherwise? The answer is, not very well.
Our law on this is still based on the 1836 case of Pritchard and essentially the following criteria apply: can a defendant suffering from a mental disability such as dementia, understand the criminal case that has been brought against him; adequately follow the evidence during the trial procedure; able to provide cogent instructions to his lawyers and is he capable to sufficiently participate in the trial procedure by being able to give evidence on his own behalf, or, archaically, is he able to challenge a juror?
If, supported by the evidence of at least two court approved psychiatrists, the answer to any of these issues is NO, as found by the trial judge, then the defendant is found unfit to plead. Thereafter, a jury is called upon to hear evidence to determine whether “he did the act” e.g., did he or did he not set fire to the building? The jury are not required to enquire into the defendant’s mind (or lawyers’ speak – mens rea) and consider questions such as intent.
Where a jury finds that the defendant “did the act” then the court’s powers are quite limited and are restricted to an absolute discharge or some form of supervision or detention under a hospital order. The judge cannot impose a prison sentence.
This procedure applies to all unfitness to plead cases, but where dementia is the disability, particular difficulties are presented.
Conclusive diagnosis of dementia or the severity of the condition is impossible and physical evidence can only be obtained upon post-mortem.
It is a condition that can easily be feigned and the court misled; notably the infamous case of Earnest Saunders. His case has resulted in the criminal courts approaching cases of claimed dementia with deep suspicion.
The main apparent aspect of dementia is loss of memory and memory loss of the facts surrounding an alleged crime cannot itself amount to a defence or an assertion of unfitness to plead. Therefore, a diagnosis from two psychiatrists that a defendant is mildly affected by his dementia may well not be enough.
Of course there is the current controversy surrounding the high profile case of Lord Janner where according to the DPP there is sufficient evidence to prosecute but, due to his state of dementia (not his age or the age of the alleged crimes) it is thought “not to be in the public interest” to try him.
Undoubtedly, the DPP would not have reached this decision casually and without thorough psychiatric examinations, having taken place and certainly at least one of those psychiatrists would have been appointed by the Crown. Even so, her decision can be criticised. She has deprived the complainants of their chance to give evidence and she has deprived the accused Lord Janner of any chance of testing their evidence in an effort of salvaging what is now a ruined reputation.
Martin Lewis is a barrister of 18 years call at Castle Chambers and deals with cases covering all aspects of criminal law. This article is for informational purposes only and does not constitute legal advice. If you require any advice please contact Jeffrey Lewis or Siobhain Egan on 020 7387 2032, or complete our online enquiry form here.
Our client is charged with two counts of conspiracy to supply a controlled drug of class B, namely mephedrone. He first appeared before the Magistrates earlier this year, was remanded into custody and sent to the Crown Court for trial.
When a person in custody is sent by the Magistrates’ Court to the Crown Court for trial, the law states that the trial must take place within 112 days of the committal. This time limit is known as the custody time limit, or CTL.
If the trial will not take place within the CTL, then the Prosecution must apply for an extension of the custody time limits in accordance with the relevant statutory provisions. In order to be successful in their application, they must prove two things:
In this case, the prosecution had to apply to extend the CTL because, owing to extraordinary difficulties in obtaining legal aid and shortcomings by the prosecution with regards to disclosure, we had to apply to break the original trial date. As a result, the new trial date was listed to take place past the expiration of the CTL.
The basis of the Crown’s application was that there was a good and sufficient cause, namely that we had applied to break the trial fixture and that they had acted with all due diligence and expedition.
We opposed both of those assertions. It was our submission that there was no good and sufficient cause because, although we had applied to break the trial fixture, we had only done so because we had not been able to obtain legal aid for our client. The inability to obtain legal aid was not our fault, nor could our client be blamed. We argued that the LAA had made a material error whilst processing the application, which had caused the delay. Secondly, we argued that the Prosecution had not acted with all due diligence and expedition as they had not properly completed secondary disclosure.
It is fair to say that the argument as to whether or not difficulties in securing legal aid can amount to good and sufficient cause has never been argued before, and this case may be of interest to practitioners, given the increasing frequency of delays caused by LAA errors in the current climate of austerity.
In an interesting judgment, the judge stated that although difficulties in securing legal aid will not always amount to good and sufficient cause, on the particular facts of this case it did, and the Prosecution’s application was successful. The custody time limits were therefore extended until our client’s trial later this year.
This case raised a novel point of law, which we are looking into taking further by way of a judicial review.
Penny Muir has conduct of the case, assisted by Daniel Jones. The excellent Simon Molyneux of Carmelite Chambers is instructed as counsel.
The Sentencing Council have just published their definitive guideline on Corporate Criminal offending, just before the long awaited Code for Prosecutors on Deferred Prosecution Agreements (DPAs) is due at the end of this month.
The Guideline not only reflects the usual high standard of the Council’s research and care when dealing with this subject, but also promises a much tougher regime for those corporates convicted of criminal behaviour e.g. fraud, money laundering, and bribery and corruption.
The Lord Chief Justice gave some indication of which way the wind is blowing when giving short shrift to appeals against fines handed down to Sellafield Ltd and Network Rail Infrastructure, in a very comprehensive judgement concerning fine levels for health and safety and environmental offences.
What will be of particular interest for GCs and corporate boards is the guidance for the fine levels stated within the document will have for the forthcoming DPAs. This follows the US example, where DPA fines are based upon US Federal Sentencing Guidelines.
I will deal with DPAs later in this article, but will now focus on the approach that the Courts will follow when applying the Guideline.
When dealing with a corporate offender the sentencing Court will follow this process:
This guideline will take effect on 1 October 2014 and will apply to those corporate offenders sentenced on or after that date.
The Council was at pains to emphasise that their guideline “is not for deferred prosecution agreements (DPAs) but may be used to inform the level of financial penalty that forms part of the DPA”.
To be honest, there are many problems which the authorities face when attempting to prosecute corporates for criminal offences such as money laundering, fraud, and bribery and corruption. The government complains about the cost of these prosecutions and the time involved bringing them to court. The issues are actually more fundamental than that. In short, within the criminal justice system it is virtually impossible in England and Wales to bring a successful fraud or money laundering allegation against a corporate, because the system simply does not allow it. The Crown would have to determine the ‘controlling mind’ of the corporate and adduce an (invariably elusive) admissible evidential trail that leads straight to the board; hence the pleas from the SFO Director, David Green QC, to extend the s.7 Bribery Act 2010 to other offences (see my blog of 16/06/2013).
The SFO have used civil recovery procedures rarely against corporates in the past, but that has attracted disapproval from the OECD who complained about the lack of transparency involved.
The FCA have recently brought regulatory proceedings and levied huge fines against companies for failures concerning money laundering and bribery and corruption failings.
The Americans, on the other hand, do have the legal machinery to prosecute corporates, but seemingly prefer to resort to civil settlements in the form of non-prosecution agreements (NPAs) or deferred prosecution agreements (DPAs) and levy huge fines.
These agreements have been in the armoury of US prosecutors and regulators since the 1990s but have been used with real gusto since the beginning of the financial crisis under the Obama regime. The Ministry of Justice and UK Government have looked wistfully across the Atlantic at the apparent success of these agreements (and the eye popping fines that go with them).
However I would argue that the US approach with these types of agreements is only useful in that it adds to the cash strapped coffers of the various regulators there. There is simply no consistency or transparency to any of these agreements.
Many of them are affected by political considerations; compare the treatment of foreign corporates when compared with those of the US. There is little or no judicial scrutiny of these highly secretive agreements (despite the very vocal efforts of Judge Rakoff, his colleagues, and a cross party congressional committee).
Most corporates will fight tooth and nail and resist any admission of guilt within these agreements (because it will invariably raise the spectre of third party liability i.e. shareholders law suits, which would put most of the regulators’ fines ‘in the shade’), so invariably these agreements mean little in real terms. Some of the other conditions that can be put in place by the regulators can be stringent, i.e. the length of the agreement (effectively probation), and the number of compliance audits that need to be completed within a specified period.
Some insist on the appointment of an independent compliance monitor to be paid for by the offending corporate, others do not. Again, it is difficult to understand why.
The SEC (the Securities and Exchange Commission) recently signed a DPA with a named individual, whilst emphasising the degree of co-operation that they had received from him.
The whole process has spawned a massive global compliance industry and, I would submit, has engineered a parallel system of corporate problem disposal which only serves to undermine the prosecution of corporate crime.
The current complaint in the US is that not enough individuals have been brought to account by prosecutors and that the focus has been on the corporates and those huge fines. As a result the SEC declared 2014 to be the year in which they will insist on more admissions of guilt from the corporates and when they will ‘go after’ individuals.
The inconsistency and the political aspects of the US approach have not gone unnoticed in the UK. The judiciary loathe them and have insisted on playing a positive role within the DPA process, and have the right to scrutinise these agreements, keeping a close eye on proceedings. The Sentencing Council guidelines will assist them in this respect.
We wait to see what the SFO and CPS come up with in their definitive Code for Prosecutors, but presumably they will want to see determined efforts to quickly remedy any deficiencies within the corporates’ compliance systems and early self-reporting as part of the corporates’ mitigation.
But, will GCs and Compliance Officers self-report? The truth is that the cash strapped UK authorities are only going to be interested in the major, headline-grabbing situations, which are few and far between. Internal business investigations, unless handled very carefully, can be costly and unwieldy. Some GCs have recently indicated that they will only self-report on a very limited basis (if at all), because they know that the authorities do not have the funds to investigate them and are losing their quality staff to corporate compliance teams and City litigators.
Frankly, there is more to fear from a US-led investigation than from either the SFO or the CPS at present.
This firm has gained considerable recent experience of acting in privacy/harassment injunctions and in particular applications to commit following breach.
Two important related matters have become clear as a result of recent cases.
The High Court has clarified the public funding arrangements for those facing an application to commit for breach.
It has been unclear since the commencement of LASPO how those facing imprisonment for contempt can obtain a representation order. The Legal Aid Agency routinely rejects any application for civil funding. It does not appear from the application form CDS 14 for criminal funding hat that is the appropriate route either. Nonetheless even an impecunious Defendant facing prison for contempt must be entitled to representation. The issue has been very recently settled in Kings Lynn v Bunning 2013 EWHC 3390 (QB). An application on CDS 14 should now succeed. The limit on funding can be raised on application to the High Court. We were instructed for a co defendant in that landmark case.
The High Court has reaffirmed the requirement that proceedings particularly those where the liberty of the citizen is at stake should take place in public.
In ruling on an application to commit on a privacy injunction (so called super-injunction) the High Court strictly followed the practice guidance given by the Lord Chief Justice and the President of the Family Division on 3 May 2013 publicly naming the party committed for contempt, delivering a judgment in public with reasons for the committal and ordering that a transcript of the judgment be made available at public expense. Mr Justice Tugendhat gave judgment on the committal on 14 January 2014.
An application to commit the Defendant for contempt was made. It was alleged that there had been numerous breaches of a privacy order by the Defendant contacting the Applicant directly by telephone, sending text messages and emails. Some of this contact had occurred in person directly in person in and other contact was through solicitors. All was in apparent breach of the undertakings given by the defendant.
The approach adopted by the High Court following practice guidance from the Lord Chief Justice on this application to commit undermines the purpose of a super-injunction. Any party minded to seek such protection should have in mind that if he or she wishes to retain secrecy enshrined in the order then the order is unenforceable certainly by means of an application to commit for contempt. Solicitors and counsel advising in such cases will need to warn clients that should there be a breach of the order any application to commit is likely to be substantially heard in public and the name of the contemnor will be published thus defeating the anonymity order. There is a risk in such circumstances that the Applicants secret will be exposed as will the fact that he or she was willing to go to great lengths to keep the secret. Advice to a Claimant/Applicant in such cases needs to be given early in the process. Once an application to commit is made supported by evidence it is not within the gift of the Applicant to withdraw the proceedings. The victim in such cases is the court rather than the Claimant/Applicant.
Claimant/Applicants should also consider that the committal proceedings do not only concern liability i.e. is there a breach of the order or not. The penalty must also be determined. It is difficult to imagine circumstances where albeit that a breach is made out on the evidence there will not also be issues of fact relevant to determine the seriousness of the breach and mitigating circumstances which will need to be established. There is a real risk that such matters will be aired in public.
Lewis Nedas instructed counsel, Mr Ian Bridge of No5 Chambers. Lewis Nedas were assisted throughout the case by Jaque Courtnage of the Families for Justice Campaign.
If you need any advice in this area, contact our specialist lawyer Keith Wood on 020 7387 2032 or complete our online enquiry form here.
In its latest move to ensure that all EU citizens receive a fair trial, wherever they are in the EU, the European Commission has presented a package of proposals to further strengthen procedural safeguards for citizens in criminal proceedings.
These most recent proposals aim to guarantee respect for the presumption of innocence and the right to be present at trial; to make sure that children have special safeguards when facing criminal proceedings; guarantee access of suspects and accused to provisional legal aid at the early stages of proceedings and especially for people subject to a European Arrest Warrant.
These proposals are another milestone down the road of procedural rights and aim to complement a set of three other EU laws agreed since 2010: on the right to translation and interpretation, the right to information, and the right to access a lawyer. The hope is that the new proposals will help to ensure the smooth operation of justice in the EU.
The new proposals include:
If you have been charged or fear you may be charged with a criminal offence in another EU country and require specialist legal, advice please contact our solicitors Jeffrey Lewis or Siobhain Egan on 020 7387 2032 or complete our online enquiry form here.
This blog post is intended as a news item only – no connection between Lewis Nedas and the parties concerned is intended or implied.
The European Parliament has approved proposals put by the Special Committee on Organised Crime, Corruption & Money Laundering (CRIM) as part of the Fourth Anti-Money Laundering Directive.
Organised crime is of particular concern to the European Parliament; they believe that there are at least 3,600 gangs working within the single market. It is estimated that corruption costs €120 billion i.e. 1.1% of EU GDP.
Organised crime in Europe includes people trafficking (there are approximately 800,000 forced labourers in the EU, of which 270,000 are victims of sexual exploitation); online gambling has an increasing role in money laundering and underlines the issue of organised crime in gambling, sports match fixing and illegal sports. These are all current criminal issues for the EU.
So the EU Parliament has approved the following approach which is likely to be ratified in spring 2014 and implemented by member states between 2015 and 2016.
In short, there will be European harmonisation of criminal law on money laundering: more anti-money laundering checks will be applied to all forms of gambling; companies should have in place adequate measures and procedures in order to obtain full accurate information regarding beneficial ownership; the abolition of tax secrecy (although the US have achieved much in this area already through FATCA); and the elimination of EU tax havens, amongst other issues.
The Fourth AML Directive will have enormous repercussions if fully ratified (which is very likely). It will affect Extradition/Euro warrants, civil recovery of assets in European jurisdictions, business regulatory compliance, and European business transactions. The list is seemingly endless.
We will be publishing a series of blogs on each of these issues over the next few months as the Fourth AML Directive moves towards ratification and adoption by each of the EU member states.
If we can help you with any of the issues raised in this blog please contact us by either telephoning us on 020 7387 2032 or by completing our online enquiry form here.
At a time when confiscation orders are on the rise, those who have read the case of R -v- Varma (2012) UKSC 42 would have done so with interest.
To summarise, Varma entered pleas of guilty to be knowingly concerned in the fraudulent evasion of tobacco and was sentenced to a conditional discharge for two years. The Court made a confiscation order and an application was submitted for leave against the imposition of that order.
It was argued that it was inappropriate to punish a defendant by imposing a confiscation order where a conditional discharge had been imposed. The Court of Appeal allowed the appeal, however, in quashing the confiscation order they certified that there was a point of law of general public importance and the matter was referred to the Supreme Court.
The Supreme Court overturned the decision by the Court of Appeal and decided that the Crown Court has the power, and often the duty, to make a confiscation order against a defendant following conviction for an offence, regardless of what sentence had been imposed.
This case is of some significance, particularly for those lesser offences where the Court may be minded to impose discharges as opposed to financial or other penalties. In such cases defendants must be aware of the financial repercussions of pleading guilty to any offences regardless of what sentence is then handed down.
Clearly, advice is necessary and desirable to defendants at an early stage of proceedings as to the likely range of penalties, including financial orders, that the courts may impose.
We at Lewis Nedas are able to offer a comprehensive advice service as to the whole range of confiscation orders that can be made by courts following conviction or a plea of guilty, in addition to advice on cases where the Police and/or prosecuting authorities invoke civil proceedings for the seizure of monies where criminal proceedings are deemed inappropriate or, for whatever reason, cannot be undertaken.
Whilst, on the face of it, the case of Varma is unlikely to trouble too many defendants, what is clear is that the courts are duty bound to consider confiscation orders and/or other financial orders in all criminal cases where a conviction is obtained. That was not the case until this ruling.
A number of new criminal offences and sentences came into effect on 3 December 2012, as part of a wide range of provisions introduced in the Legal Aid Sentencing and Punishment of Offenders (LASPO) Act 2012.
The provisions include:
To arrange a consultation with our top criminal lawyers in London please contact Jeffrey Lewis or Siobhain Egan.