Since 2017 police bail has been governed by the Policing and Crime Act 2017. Bail refers to the temporary release of a person from police custody ‘in connection with proceedings for an offence or can be given to a person who is accused or convicted of an offence or who is under arrest for the offence’[1]. A distinction is therefore made with pre-charge bail and post-charge bail. Pre-charge bail allows for suspected individuals to be released from custody but under conditions, to allow officers further time to investigate the case.
In addition, you may be ‘released under investigation’ or RUI following the arrest and interview at a police station. This means that you have been released from custody without being charged or without a bail date to return to the station. Under the Policing and Crime Act 2017, there is a presumption of release without bail or being ‘RUI’. In other words, there is a presumption against pre-charge bail unless the individual case deems it ‘necessary and proportionate’ for bail to be implemented. Guidance for what constitutes ‘necessary and proportionate’ is set out in the National Police Chief’s Council which sets out its used in ‘high harm’ cases.
Although a strict time limit of 28 days is imposed on pre-charge bail, none exists for those released under investigation. This means that people can be left in ‘limbo’ without a time period for when an update will be received on this case. The current lack of time limits on those who are released under investigation (“RUI”) should be altered. Any interactions with police are stressful regardless of the cause for such interactions. Being released under investigation after an interview compounds this stress, as they are left without further instruction on what the next steps are or the time limit on when they will have further communication with the police, save that they will be contacted at some point in the future. Depending on the alleged nature of the crime the length of investigation will vary.
These issues have resulted in the Home Office recently responding to a consultation on pre-charge bail by setting out a proposed basis of reform for bail and the provisions governing those released under investigation. The proposed reform is to introduce a ‘neutral position’ and extension of 28 days to 3 months’ time limit for bail which will help combat the period of time that people are released under investigation as it will ease pressure. An extension may then be sought by application to the magistrates for up to a period of 12 months. Such reforms are encouraging but also reflect the legislative understanding of the position we now find ourselves in with pre-charge bail and those RUI due to the 2017 Act provisions. The 2017 act was introduced to try relieve the anxiety and stress of spending time on bail without clarity to the progression of their case. However, this has in fact exacerbated this issue forcing suspects to live without certainty for extended periods of time.
Comparatively, the RUI provisions for the police, can result in an increased workload. Depending on the work and resources of that station, the length of time can be considerable. During this prolonged period contact can be lost with the suspect both with the solicitor and geographically, through a change of address for the client. As one of the ways suspects are contacted is through postal requisition, this can result in increased delays and police resources having to be allocated to locate the suspects. Additionally, this has increased demand on legal advice services who have unanticipated work from those RUI for lengthy periods. With legal aid cuts already putting substantial pressure on legal services this additional and unnecessary burden adds to their work.
Perhaps more concerning is that RUI applies to those suspected of serious offences such as those of a sexual nature allowing them to remain in the public and causing potential distress for their victims. Comparatively, the procedure for bail allows for certain conditions to be implemented such as a curfew or electronic monitoring to provide some protection to such victims. Therefore, safety concerns arise from the current system of RUI. The Law Society’s report released in September 2019 on RUI and the problems it poses confirmed it was being used for individuals suspected of knife and robbery offences, rape and even murder after bail had expired.
A further caveat of the proposed reform therefore, is that it will provide greater protection for such victims due to a requirement of officers to obtain the views of the victims on pre-charge bail conditions. By working with the victims, officers can ensure their safeguarding concerns are addressed and reflected in the bail conditions proposed.
The reform for pre-charge bail are therefore welcomed, as it will provide a more proportionate and balanced approach in terms of extending pre-charge bail time limits. By eliminating the presumptions against pre-charge bail, brought in by the 2017 act, it is hoped that it will instead encourage its use only when it is proportionate to do so in those case with greater harm. This in turn may avoid the use of RUI in high harm cases where investigations may be carried out with the new extended time period for pre-charge bail. However, it still raises the question of when time limits will be implemented for those released under investigation, especially cases involving serious offences. Releasing suspects under investigation who are suspected of lesser offences may be appropriate to decrease the pressure and workload of the police force, but only in those less serious cases where individuals are assessed as being a low risk to the public. How the proposed reforms will work in progress is yet to be seen.
By Kellina Gannon
Criminal Paralegal
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[1] The Bail Act 1976 s.1(1)(a) and (b)
The UK Parliament passed the Coronavirus Act 2020 in May in response to the unprecedented international health crisis Covid-19. With this introduction came voiced concerns over the impact on civil liberties that the extensive measures have and its direct contravention with the European Convention on Human Rights (ECHR). Two provisions which emphasise this point are the schedules on mass surveillance and detention of ‘potentially infectious persons’.
Firstly, mass surveillance. Under Schedule 22 mass surveillance was authorised on the grounds that it would ‘protect national security and prevent serious crime’, similar to the provisions found under the Investigatory Powers Act 2016. The provisions allow urgent surveillance warrants to be executed without prior judicial authorisation. Such unprecedented powers which allow the execution of warrants without judicial approval until after the fact opens the gates to those in power abusing their position. Arguably such invasion raises challenges under Article 8 of the ECHR, ‘right to privacy’ and reflect a disproportionate erosion of our civil liberties. Arguably, under schedule 22, the authorities are given access to our personal lives without appropriate safeguards. Furthermore, the ease at which this measure was introduced raises concerns about how easily such provisions could be extended and passed even after Covid-19.
Secondly, the 2020 Act allows the detention of ‘potentially infectious people’. Such a broad statement opens the possibility for police officers to detain a large proportion of the public if necessary. The period of detention extends to the full 14 days of the infection period. However, with a large proportion of the public ‘asymptomatic’, police could interpret such provisions to give them the power to detain any number people on grounds they are ‘potentially infectious’. Under Section 5 of the ECHR, individuals have a right to liberty which comes into direct contradiction with such extensive powers of detention for the length of time provided. Due to the nature of the virus, our democratic freedoms are playing second fiddle to government powers due to the broad interpretation of the legislative provisions.
However, it is important to remember that Article 5 is a qualified right which allows authorities to interfere in exceptional circumstances. Indeed, the European Court of Human Rights set out that detention in such circumstances is lawful to prevent the spread of Covid-19 when it is a ‘last resort, and the person is a danger to public health or safety’. This would suggest that appropriate safeguards are in place to protect our civil liberties so that detention is only required in exceptional circumstances.
Therefore, despite the challenge’s the measures raise to our civil liberties and those enshrined in the ECHR, it is important to analyse the actions of the government in the backdrop of the unprecedented international health crisis we now face. Never before have we experienced a crisis that has threatened to overwhelm the NHS. Fast and strict measures had to be implemented to allow for the government to effectively combat the coronavirus at the cost perhaps of our civil liberties for a period. The toughest provisions were introduced in the best interests of public health and safety, particularly those in our society who are most vulnerable. The government are themselves, under a positive obligation to take proactive steps to protect the public under Article 2 of the Convention of Human Rights and the measures can be seen to do just that. There is a consensus that the current sacrifice of our civil liberties is accepted for the long-term benefit of beating Covid-19. The main point is that these provisions are temporary and therefore are not eroding our civil liberties but are simply a reflection of the necessary measures needed for a finite period to deal with this crisis.
Thus, Covid-19 has shown the government’s ability to overnight introduce tough and intrusive policies to govern our lives at the cost of encroaching on our civil liberties. Civil liberties compromise one of two central roles of a democratic state, the second being the provision of goods. However, it is highly unlikely that such intrusive measures as those that are currently in place will continue after the two-year mark. The safeguards implemented such as debating its implementation every 6 months prevents an infinite extension of such powers. It is also important to note that many of the provisions we see as tough under the 2020 Act already exist, such as detention without charge under the Terrorism Act 2006, without clear guidelines as to the execution and limitations of these powers. The measures therefore are not eroding our civil liberties but providing a stop-gap in the legal landscape that governs our civil liberties for a finite period.
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County lines drug gangs refers to the practise where organised criminal networks and gangs use vulnerable people or young children to export illegal drugs across county lines, from big cities to rural countryside’s. The use of youths in particular, is an attempt to evade the detection of local authorities and is thought to somewhat diminish the risk of a lengthy sentence if caught comparatively to an adult offender.
The sentencing guidelines for drug offences is currently set out under the Misuse of Drugs at Act 1971 (MDA). However, the Sentencing Council has recently set out proposed new guidelines for those defendants charged under the MDA 1971 Act, which would lead to tougher sentencing thresholds particularly for those in powerful positions in these criminal networks.
The new guidelines will come into effect on the 1 April 2021. These guidelines will as Her Honour Judge Rebecca Crane commented ‘provide a clear sentencing framework for the court’s’. The updated guidance reflects the changing landscape of drug offences and the increased exploitation of children to run drugs over county lines. The tougher sentences hope to act as a deterrence to those at the high of these criminal networks, but how different are these changes?
The guidelines introduce new factors of culpability for those in a leading role in the drug network. This includes specifically;
These characteristic demonstrate a ‘leading role’ under the proposed changes to the Misuse of Drugs Act 1971 section 4(3) and increase culpability. In terms of how this is reflected in the sentence given, the guidance published sets out that those individuals in a ‘leading role’ in the commercial exportation of Class A Drugs could face a maximum sentence of life imprisonment with a range of a high level community order to 16 years custody. Comparatively, the current guidance sets out that ‘involving others in the operation whether by pressure, influence, intimidation or reward’ is a significant role not a leading role.
Finally, a further point to note is that the guidance sets out that those sentencing should be aware of the findings of a report commissioned by the Sentencing Council, which found a disparity in sentence outcomes for those from Black, Asian and other ethnicities comparatively to White offenders in terms of the immediacy of the custodial sentence and its length.
The dynamic of county lines smuggling and how to prosecute the defendants is a source of much debate in recent years over the conflict that arises between prosecuting those individuals caught smuggling but also recognising the corporate exploitation that gives rise to concerns under the Modern Slavery Act 2015, for those in this supply chain. At its core this type of drug distribution involves the exploitation of vulnerable people either by bribery or coercion and then facilitating their travel for their product to be distributed. Under s.2 of the MSA 2015, a person commits the offence of human trafficking if they ‘arrange or facilitate the travel of another person with a view to that person being exploited’.
Prosecuting drug dealers or those involved in county lines drug dealing within this framework reflects the laws ability to utilise national legislation to subdue county line activity. However, tougher sentencing was needed to reflect this as the chairman of the Sentencing Council, Lord Justice Holroyde said, ‘the changing nature of offending… concerns about the exploitation of young or vulnerable people in the commission of drug offending’. The new guidelines set out higher culpability specifically for those who exploit vulnerable people or youths in the commission of drug offending. This includes not only those who head these criminal organisations but individuals in lower positions who exploit. Such reform is hoped to deter those from pursuing this trade and protect those most at risk of exploitation but only time will tell the effect is has on practise.
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In the run up to the UK’s General Election, the political parties set out their vision for the future. According to the Conservative manifesto, this includes rolling up the Serious Fraud Office (SFO) into the National Crime Agency (NCA) thereby ‘strengthening Britain’s response to white-collar crime…improving intelligence sharing and bolstering the investigation of serious fraud, money laundering and financial crime.’
The pledge has not been entirely welcomed by the legal community. As the UK’s only dedicated, and independent, investigator and prosecutor of serious fraud and complex economic crime, some see the proposal as allowing for political interference; while others have gone further by suggesting it threatens the UK’s reputation as a protector and champion of the rule of law. Those in favour of rolling up the SFO see the pledge as an opportunity: by increasing the flow of information between law enforcement and security agencies, and introducing a single strategy for tackling interconnected threats, the UK may be able to more effectively tackle fraud, money laundering, bribery, terrorist finance and serious organised crime.
Whatever the future may hold, this recent development is yet another in a long history of threats to bring the SFO to an end. In this blog post we provide a brief overview of its purpose and some of its notable failures and successes.
The SFO is a non-ministerial, and therefore independent, government department responsible for detecting, investigating and prosecuting large scale and complex fraud, bribery and corruption cases. It was established nearly 40 yearsago by the Criminal Justice Act 1987 following a series of financial scandals in the City of London and a report (known as the Roskill Report) into how the law and criminal proceedings could be changed to improve the way serious or complex frauds were handled by the authorities.
The SFO has jurisdiction in England, Wales and Northern Ireland to take on large economic crime cases. Although it is not part of the criminal justice system covering Scotland, the Isle of Man or the Channel Islands, it plays a large role in assisting overseas jurisdictions, such as the US Department of Justice, investigating serious and complex fraud, bribery and corruption. It also works closely with other national law enforcement bodies and agencies, including the NCA’s Economic Crime Command, International Corruption Unit and Bribery & Corruption Intelligence Unit, the City of London Policy, regional forces, HM Revenue & Customs (HMRC) and the Financial Conduct Authority (FCA).
In terms of resources, it has approximately 400 full time employees, including investigators, forensic accountants, lawyers, analysts and digital forensics experts, and expands its workforce with temporary and fixed term staff when especially big cases are taken on. While it is relatively small compared to other government departments, it has a fairly sizeable annual budget of approximately £35 million (although it has been subject to a series of budget cuts over the years). It usually has approximately 60 criminal investigations and prosecutions live at any one time.
As the primary complex economic crime enforcer, it only takes on the most complex and serious cases. This means it will only open an investigation if the case meets certain criteria. These include cases which undermine the UK’s economy, in particular the commercial and financial interests of the City of London, where the actual or potential loss involved is high or harm is significant, where there is a very significant public interest element or if it presents a new species of fraud.
In order to carry out investigations and bring prosecutions, it is granted significant powers. These include the power to search property and require individuals to produce documents and answer questions. You can find out more about the powers of the SFO and its approach here.
Our partner-led Serious Fraud team has vast experience dealing with the SFO and defending complex fraud cases, many with a large international dimension. Our multifaceted approach, which includes involving specialist professionals, marks our Serious Fraud team out as a distinctive and progressive law firm that takes special care to protect our clients’ interests. We handle SFO investigations and prosecutions in a way that insulates our client’s from the majority of the administrative and logistical issues, allowing them to concentrate on working directly with our specialist solicitors to formulate a strategy for dealing with agencies and their investigations.
Our expert corporate crime defence team has over 40 years’ experience successfully defending clients against serious fraud and financial crime allegations. We are also ranked in Chambers and the Legal 500 for the high quality of our fraud work, and our expert solicitors are described as ‘precise’, ‘steely determined’ and ‘always mindful of securing the best outcome’. Our specialist financial crime & fraud solicitors, based in the heart of London, therefore have extensive experience providing our clients with thorough representation and successful defences when faced with a SFO investigation or prosecution. For more information, please contact Jeffrey Lewis or Siobhain Egan on 020 7387 2032 or fill out our online enquiry form.
The National Crime Agency assisted by the Dutch National Crime Squad, has dismantled an organized crime group which used a wholesale flower business to disguise their criminal activity.
The Lancashire based group used the flower business as a cover to hide their illegal drug and gun-running activities. The North-West network smuggled heroin, cocaine, amphetamine and cannabis as well as firearms and ammunition from continental Europe through the Channel ports and into the UK to their depot in Accrington, where they sold to drug dealers to be distributed throughout the UK.
The group was headed by Dutch National, Mohammed Imran Bhegani, who was sentenced to sentenced to 36 years in prison. His right hand, Sajid Osman, was given a prison sentence of 26 years. The lorry driver, Pieter Martens, was jailed for 24 years for his role in importing the goods.
Other co-conspirators were given sentences ranging from 27 moths to 17 years.
The men were charged in relation to four separate seizures made in 2014. Three of these seizures were made at the Channel Tunnel terminal in Coquelles, northern France, and the other at the depot in Accrington. It is estimated that the drugs recovered by the NCA would have had a street value of up to £30 million.
During the first seizure in March 2014, Border Force officers discovered two firearms, a pistol and a submachine gun with a silencer and laser sight. The officers also found 28 rounds of ammunition, over 600 kilos of cannabis, one kilo of MDMA, 60 kilos of amphetamine, 50 litres of liquid amphetamine and six kilos of cocaine.
Less than two weeks following the first seizure, a second seizure was made involving a lorry at the Channel Tunnel, which contained nearly a tonne of cannabis, heroin, amphetamine and cocaine. However, the Dutch driver was cleared of the importation offences he was charged with.
Some months later on July 1, 2014, a truck was stopped at Coquelles containing30 kilos of heroin and 45 kilos of MDMA. The driver Nigel Watson from Telford was arrested.
The NCA worked with its colleagues from the Netherlands to link all of the importations to the group leaders Mohammed Imran Bhegani and Sajid Osman. The agencies discovered that the men had been responsible for an additional 13 runs from continental Europe to the UK.
Greg McKenna, NCA head of investigations said:
“As this criminal network was an international one, so too was our investigation, and we have received invaluable assistance from our colleagues in the Dutch National Crime Squad and from Border Force here in the UK.”
Bhegani had been responsible for arranging the delivery of the consignments to the depot in delivered Albion Mill, Accrington. The property was rented and operated by Osman and Nizami Esshak.
The depot in Accrington was raided by NCA officers on 26 August 2014, where Osman and Essack were arrested. Two of their associates posing as ‘cistomers’, Taimur Zahid and Hussain Farooq, were also arrested when arriving at the premises to pick up drugs for sale. When raiding the premises, the NCA officers found three boxes containing flowers (part of their cover), alongside 12 kilos of cannabis in a car. Officers also seized over 200 kilos of cannabis from Albion Mill, along with notebooks evidencing their crimes which contained the details of customers and quantities to be supplied. A van outside contained a further 80 kilos of cannabis.
Bhegani was subsequently arrested at Esshak’s home in Accrington nearby the depot. The Dutch crime squad officers then raided properties that were linked to Bhegani in the Netherlands. There they discovered phones and SIM card that had been used to contact those involved in the group as contacts and drivers. They also found documents detailing their price lists and transfers of large amounts of cash. The lorry driver, Benny Planken, from the Netherlands was later arrested after being identified as the person responsible for importing cannabis discovered in Albion Mill.
All of the men were charged with offences related to importation, with. Esshak, Zahid and Farooq all pleaded guilty prior to trial. However, Bhegani, Osman, Watson and Planken were found guilty of conspiring to import drug following a jury trial Preston Crown Court on 22 February 2016.
Bhegani and Osman were also convicted of offences related to importing firearms. The men were sentenced at the same court last week, 10 March 2016.
Greg McKenna, head of investigations at the NCA said:
“In terms of organised crime, Mohammed Imran Bhegani was right at the top of the tree. He was an international drug dealer with high-level contacts in mainland Europe. Bhegani had the ability to transport vast quantities of illegal drugs and weapons from the continent and into the UK.”
This echos the recent speech made by Ms Owens, the new head of the NCA, who has made clear that the organization now intends to target the ‘untouchable’ highest level of criminals in the UK, who have international contacts.
McKenna elaborated:
“Working together we are determined to disrupt and bring to justice organised criminal groups involved in this type of smuggling.”
This appears to be the beginning of a new era for the NCA as the organization becomes more sophisticated and works together with its international partners.
Lewis Nedas are a leading city firm with an enviable reputation for providing effective legal advice to complicated situations. Our team have experience of some of the most complicated cases concerning NCA investigations, allowing us to give our clients access to tenacious and highly knowledgable legal advisors. We have been actively involved in this field for many years, and take pride in offering our clients a comprehensive service: we will represent your interested in all discussions with regulatory bodies that are required; provide legal advice that is specific to your circumstances and interests; and, if the need should arise, protect your interests in any litigation. Contact our team now to find out how we can help you.
It has been long established that if you plead guilty in the criminal courts you could (and probably would) face some form of financial penalty, depending on the nature of the offence and your circumstances. Until October 2012, if acquitted you were able to recoup your costs from the State if you had paid for your representation privately. Since January 2014, you are no longer entitled to recover all your costs and, in most cases, only recoup less than a third. However, since 13 April 2015, if you appear in court facing a criminal charge, unless acquitted, you will face having to pay the Criminal Charge.
The previous Lord Chancellor, Chris Grayling, brought in the Criminal Charge on the back of the ‘criminals need to pay their way’ policy. In essence, even if a court decides that no other punishment should be handed down, the defendant will have to pay a victim surcharge (starting at £15) and a minimum of £150 for the Criminal Charge.
I recently advised a defendant who was summonsed to court for theft of milk powder from a shop. She had not left the shop and my advice was that not all the elements of the Theft Act had been made out and she therefore had a strong defence. However, I also had to advise that, should be plead not guilty and was found to be guilty, the minimum Criminal Charge payment could be £1,000. My client, on benefits, told me she wanted to plead guilty as she could just about pay £165 over a year but would never be able to pay the £1,000.
The Criminal Charge applies to all offences and breaches committed after 13 April 2015, and is fixed by the type of offence and the plea. A guilty plea in the Magistrates’ Court to a summary only offence attracts £150, while a trial in the Magistrates’ Court for a more serious matter will raise a charge of £1,000. Higher rates apply in the Crown Court.
These financial penalties can be quashed after two years but, in the meantime, the bailiffs will have had their say.
Crime may be down 14% according to recent figures released by the Ministry of Justice but sexual offences have bucked the trend and have increased quite significantly. While media attention has mostly focused on a handful of celebrity defendants, the story last week concerned the 660 suspects arrested over the past 6 months for sexual offences committed online.
Called Operation Notarise, only a handful was previously known to the police for any sort of offending. Many are respected professionals and include teachers, doctors and former police officers. Some 833 buildings were searched and over 9,000 devices seized for forensic examination. The National Crime Agency has spearheaded this operation but has revealed very little information as to its methodology. However, indecent images remain widely accessible on the internet and via file sharing software and, contrary to popular belief, most of those arrested did not have to search out images on the so called ‘dark net’.
As with all other categories of offender, there is no right to anonymity. The stigma attached to sex offences, especially those concerning children, places considerable extra stress on those arrested and prosecuted. Even those who manage to clear their names may not escape. Media reports indicate that the Police intend to inform the press when accused persons are due to appear in court in respect of offences arising out of Operation Notarise.
The previous DPP was severely criticized by Stephen Fry among others for publishing the names of suspects prior to charge. There was a stage when the Liberal Democrats were going to support anonymity in sexual offences cases but that plan was dropped, presumably as it was not a policy likely to garner many votes.
Lewis Nedas Law has extensive experience of handling sexual offences, including cases involving complex computer evidence. Indeed, Tony Meisels is already representing some of the individuals ensnared by Operation Notarise. We work closely where applicable with leading forensic scientists, so prosecution evidence can be challenged and checked.
We provide a sensitive and non-judgmental approach and recognise the difficulties which often occur in allegations of a sexual nature. Legal aid is available subject to eligibility. If you require any assistance please contact Tony or Keith Wood.
Despite the recent series of high profile historic sex prosecutions that have resulted in acquittals, the Director of Public Prosecutions, Alison Saunders, is determined to continue with their revamped prosecution policy in this area.
The prosecution of serious crime and sexual crime in particular is vitally important. However, what is concerning is the mixed messages coming from the CPS and the Police on this subject, and the prosecution of evidentially ‘weak’ cases, which would seem to be an important departure from the core elements of the Code for Crown Prosecutors.
The DPP, in a recent and important speech at the annual conference of the St Mary’s Sexual Assault Referral Centre in Manchester, said that the new CPS specialist guideline, released last autumn by her predecessor Sir Keir Starmer, meant a “shift of focus towards ensuring that potential victims have their day in court”. She continued to say that prosecutors should consider that, “the impact over time might have become greater and led to adverse effects on the victim’s physical or mental health and their circumstances in general. A prosecution, especially for a more serious non-recent offence may help the victim through the offender being brought to justice even if the courts are likely to only impose a nominal penalty. An admission or finding of guilt may help the victim to come to terms with the offence committed against them.”
She went on to suggest that cases were not brought to court unless a conviction was certain, and dismissed any suggestion that victims were motivated by financial gain or other motives.
Her views are wholly endorsed by specialist support organisations.
To be frank this speech really hasn’t helped matters.
The core elements of the CPS code are that there is a prima facie case for the defendant to answer, that it is in the public interest, and that there is a realistic prospect of conviction.
However the DPP seems to be suggesting that the new focus is that cases are only brought to court where convictions are certain. She refers to the offender rather than the accused and, frankly, to suggest that putting a victim through the court process will help them presumably find closure, even if the sentence handed down to the convicted individual is nominal, is astounding to those of us genuinely familiar with the trial process.
Not only that, but there are no nominal sentences in these cases; quite the contrary.
Although the CPS has had a number of successful prosecutions concerning historic abuse, particularly in certain institutionalised situations, there have a large number of spectacular failures where, evidentially, the evidence is weak.
Over the last two years we have successfully defended cases based on contaminated DNA (where the case was thrown out by the Judge); cases where the victim had substantially and fundamentally contradicted herself in various written statements and in the witness box; another when a victim identified one man that she believed seriously sexually assaulted her as an eight-year-old (we were able to prove that the accused was working abroad during this period of her life, which was raised by the accused during his police interviews); another case when a letter written by the complainant identifying another man as her assailant was left on the CPS file and only discovered and disclosed at the hearing in the Court of Appeal. We are also currently advising in another case relating to historic abuse allegations which are fifty years old and where the accused died twenty years ago, yet the police say that they have to continue with their investigation!
It is difficult to see how any of those prosecutions ending in acquittals for the defendants can help a vulnerable individual raising these sensitive and traumatic issues.
Not only that, but these acquittals come during a time of massive budget cuts for both the police and the CPS, when perhaps the focus should be on pursuing (and properly investigating and preparing) the stronger cases.
There has been a recent and huge surge of historic sexual abuse complaints. In November 2013 it was reported that there were 18,915 complaints throughout the country. 9,381 went further down the legal system and in 2012 only 28% of complaints were referred to the CPS for decisions on whether to charge or not, and yet evidentially weak cases are still getting through, which then result in acquittals.
What happens, then, to those who are mistakenly or even falsely accused? It does happen more often that the media and general public think. Jobs are lost, family homes sold so as to ensure a decent level of legal representation, family relationships disintegrate, the acquitted individual is also traumatised and, like the victim, expected to pick up the pieces of their lives.
The DPP is correct in that, for most victims, financial reward is not an issue, but a legal industry focusing upon claims on behalf of victims has mushroomed recently.
The important issue for the CPS and the Police is to get the balance correct and to ensure that justice is done fairly. It is what juries and the general public demand of them.
If you are facing any of these issues, please contact our specialist solicitors on 020 7387 2032 or complete our online enquiry form here.
I am often asked by practitioners of martial arts the legal position in relation to carrying weapons in a public place. I hope the following clarifies this issue and is of some use to those training with weapons.
The law in this area falls under Section 1 of the Prevention of Crime Act 1953 which defines the offence of having an offensive weapon as follows:
Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence.
In this context, ‘public place’ is anywhere which members of the public have access to. This would include parks, cinemas, car parks, sports halls, supermarkets, etc.
An ‘offensive weapon’ in law is defined as anything that is made, adapted or intended to cause injury to a person.
An offensive weapon that is offensive per se is said to be ‘made for causing injury to the person’. Examples of such weapons would be swords, throwing stars, knuckledusters. These items are made for one purpose and one purpose only and that is to cause injury to a person.
The next class of offensive weapon is any weapon ‘those adapted for causing injury to the person’, such as a bottle with the end smashed off or a baseball bat with nails poking out of it.
The last category of offensive weapon is ‘those not so made or adapted, but carried with the intention of causing injury to the person’, for example a Stanley knife, biro pen, brick, umbrella; the list is endless. As long as a person had that article with him and intended to use it to cause injury that would suffice.
Defences in law to the offence of possessing offensive weapons are, firstly, lawful authority. This would be available, for example, to a police officer who would have lawful authority to carry weapons. The other defence is reasonable excuse. This has a wide variety of applications, for example, it is a reasonable excuse for a chef to have a knife in public if he is taking it to work. It is a reasonable excuse for a carpenter to have a hammer if he possessed it in the course of his employment. Other reasonable excuses include self-defence. For example, if you are expecting an imminent attack then it may be a reasonable excuse for you to pick up or to have a weapon for immediate use.
The reasonable use heading can also be available to martial artists in relation to weapons that they might be carrying. Therefore, if a martial arts weapon is purely made for the use of teaching, then it is not an offensive weapon. If, however, it is made to cause harm and its secondary use is an implement to teach, then it would be an offensive weapon. Most martial arts weapons fall into this category. You have a reasonable excuse to carry an offensive weapon to a place of further education to which any martial art is a source of physical arts education. Therefore, a defence is applicable under reasonable excuse. However, it is not a defence to take any weapon to a park, supermarket, the pub, or any other public place. You must take it home immediately after training. If it is not reasonable at the time to do so then this could be a defence, but the onus is on the person to prove this.
Although there are defences, do not expect this to protect you from arrest. You could be arrested if the police constable has any suspicion to believe that an offence has been committed and your legal defence would have to be proved. If the Crown Prosecution Service believe that just by virtue of you possessing an offensive weapon there is enough evidence to charge you and take you to court, then it is up to you to show on the balance of probabilities that you had a reasonable excuse for possessing the offensive weapon in question. Invariably, a reasonable excuse in this context would be that you were going to or returning from training. If you forget to take your weapon out of your car after you return home from training and you continue to have it in your motor vehicle when you are driving it for purposes other than going to or from training, then the defence of reasonable excuse may not be available to you.
Therefore, best practice would be only to have a weapon on you if you are going to or coming back from training. In addition, it is best to have that weapon in the boot of a car if you are driving, and to certainly have it well covered and next to your training suit.
The defence of reasonable excuse would be available to anyone training with wooden weapons such as a bokken (sword), jo (short staff), bo (long staff) or a tanto (dagger). Although not strictly relevant for the purpose of martial arts, the following are also examples of weapons that can be possessed with a reasonable excuse:
However, it is unlikely that reasonable excuse would succeed as a defence regarding the following, as their manufacture, import, sale, hire, offer of sale or hire, lending, or giving to any other person is prohibited under statute. It would therefore be best practice not to have these weapons in a public place:
There are exceptions to the import and possession restrictions on swords with a curved blade of 50 centimetres or over provided that the weapon:
Permitted activities include historical re-enactments or a sporting activity, e.g. martial arts demonstration. The martial art of Iaido would fall into this category. But with this martial art, above all others, it is important to keep the weapon well wrapped up in transit and only take it into a public place if going to or returning from training.
If you require any further advice in relation to this or any similar matter, please contact us on 020 7387 2032 or complete our online enquiry form here.