Malware is a common online threat, where a person is directed to scam web pages which enable scammers to obtain personal information that can lead to identity theft. Another scam is to send an account verification request where a third party link is provided, again to obtain personal details.

Catfishing can be another issue and one which has been the subject of recent media attention. Catfishing is the process of luring someone into a relationship using a fictional online persona. While some “catfish” may just want someone to talk to, the activity could also be for financial gain or to compromise the other person in some way.

In 2010 Harkirat Assi was contacted by a man called Bobby who said he was the brother of a boy Assi’s cousin used to date. A friendship developed; they became close and then grew apart over the years before rekindling the friendship. Years of deception began with Assi first being told Bobby had died, but then that he was actually in a witness protection programme but was in ill health and suicidal. The two became a couple in 2015, with Bobby even sending flowers and gifts to her and setting up fake profiles for his family on a Facebook group. The deception was finally discovered in 2018 when Assi’s younger cousin confessed that she had been masquerading as Bobby all along. In 2021 Assi won a civil claim against her cousin for the deception with an apology and a financial settlement.

Shimon Heyada Hayut, aka Simon Leviev, from Israel, met women on Tinder and fooled them into thinking he was the son of a billionaire diamond merchant, scamming them out of £7.4million. He was outed in a Netflix documentary, “The Tindler Swindler”. Hayut would spend lavish amounts on hotels and gifts on victims using money from other victims. Hayut established lines of credit and loans in the names of his victims, leaving them with the debt. His modus operandi was to meet a woman on Tinder and take them on an impressive and costly first date; an example was a trip on a private jet. He would continue to build the relationship, at the same time as “dating” others. At some point, he would claim that he was in danger, providing photos of his injured bodyguards to support his story. Then he would ask that his girlfriend open a credit card for him to use as it wasn’t safe to use his own. Hayut would avoid repayment using various excuses, threats and avoidance. Hayut was subsequently arrested and convicted of fraud in Israel; he was sentenced to 15 months’ imprisonment.

Richard Dexter sometimes referred to as the Hampshire Tinder fraudster, also met his victim on Tinder in 2015. Dexter was said to have “shared intimate information” to get his victim’s trust and then convinced her that he needed money for a patent catalogue; she gave him £40,000. He then told her he was on the verge of a huge windfall from investments in biopharmaceutical technology and needed a £68,000 upfront investment. The victim ended up sending him a total of £141,500. Dexter’s backstory was that he said he was worth almost £7m and that he was involved in Hollywood Studios, owned private jets and had once bought a hot air balloon on a whim. Dexter pleaded guilty to seven counts of fraud and was convicted of perverting the course of justice and possession of articles for use in fraud. He was sentenced to four and a half years imprisonment; the question of repayment of monies is to be dealt with at a later date.

As Tinder is used across many countries, the issue of jurisdiction could arise when an offence is committed. As can be seen, by the examples above, a variety of offences can be committed. Therefore, it is vital that you obtain expert legal advice if you are accused of such criminality.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact j.mcnally@cj-law.co.uk.

The post Tinder fraud appeared first on CJ Law.

New guidelines take effect in the next few weeks, which will promote pre-charge engagement between the defence and police.

What is pre-charge engagement?

Pre-charge engagement refers to voluntary engagement between the parties to an investigation after the first police (PACE) interview, and before any suspect has been formally charged. Pre-charge engagement is a voluntary process and it may be terminated at any time. It does not refer to engagement between the parties to an investigation by way of further PACE interviews. Should a suspect choose not to engage at this stage, that decision should not be held against him at a later stage in the proceedings.

Pre-charge engagement is encouraged by the Code for Crown Prosecutors and may impact decisions as to charge (para 3.4 Code for Crown Prosecutors).

Pre-charge engagement may, among other things, involve:

a. Giving the suspect the opportunity to comment on any proposed further lines of inquiry.

b. Ascertaining whether the suspect can identify any other lines of inquiry.

c. Asking whether the suspect is aware of, or can provide access to, digital material that has a bearing on the allegation.

d. Discussing ways to overcome barriers to obtaining potential evidence, such as revealing encryption keys.

e. Agreeing any key word searches of digital material that the suspect would like carried out.

f. Obtaining a suspect’s consent to access medical records.

g. The suspect identifying and providing contact details of any potential witnesses.

h. Clarifying whether any expert or forensic evidence is agreed and, if not, whether the suspect’s representatives intend to instruct their own expert, including timescales for this.

When is pre-charge engagement appropriate?

It may take place whenever it is agreed between the parties that it may assist the investigation. Where a suspect is not yet represented, an investigator should take care to ensure that the suspect understands their right to legal advice before the pre charge engagement process commences. Sufficient time should be given to enable a suspect to access this advice if they wish to do so.

A no comment interview does not preclude the possibility of pre-charge engagement.

What are the benefits?

There are a number of potential benefits that may arise from pre-charge engagement:

a. Suspects who maintain their innocence will be aided by early identification of lines of inquiry which may lead to evidence or material that points away from the suspect or points towards another suspect.

b. Pre-charge engagement can help inform a prosecutor’s charging decision. It might avoid a case being charged that would otherwise be stopped later in proceedings, when further information becomes available.

c. The issues in dispute may be narrowed, so that unnecessary inquiries are not pursued, and if a case is charged and proceeds to trial, it can be managed more efficiently.

d. Early resolution of a case may reduce anxiety and uncertainty for suspects and complainants.

e. The cost of the matter to the criminal justice system may be reduced, including potentially avoiding or mitigating the cost of criminal proceedings.

How can we help?

All of our team are trained in these new guidelines and will in appropriate cases engage with the police pre-charge in order to secure best outcomes.

If you would like to discuss any aspect of your case, please contact us.

The post Pre-charge Engagement appeared first on CJ Law.

It can be quite tempting to ignore planning laws in the hope that changes you make to buildings and environment will not be noticed. In our experience, it is quite surprising just how often these breaches come to the attention of the authorities, suggesting that many in society take a very close interest indeed to what is going on around them.

Finding yourself before a criminal court can be an expensive business, and in these three cases, we illustrate the approach that courts take to sentencing.

In Kohali [2015] EWCA Crim 1757 the appellant entered a plea of guilty to an offence contrary to section 179(2) and (8) of the Town and Country Planning Act 1990 (“TCPA 1990”). The particulars of the offence were that, between 1st February 2012 and 14th October 2013, being the owner of land situated at 201 Hornsey Road, London, N7 6RA, he was in breach of a planning enforcement notice issued by the London Borough of Islington in that he failed to comply with the remedial action required.

The Crown Court imposed a fine of £190,000 and a confiscation order of £76,562.07 which he appealed.

The Court held (in part because there was an element of double-counting so far as the confiscation order was concerned):

“In deciding upon the appropriate level of fine by way of penalty, we take into account the appellant’s course of conduct, his disregard of planning controls for personal financial gain and his failure to comply with the enforcement notice, despite ample opportunity and time in which to do so. Deterrence is also a relevant factor. We have also considered the appellant’s personal circumstances, his age and his previous good character. We consider a fine of £30,000 is appropriate and not inconsistent with the range of sentences passed in other similar cases. In our view the fine of £190,000 was manifestly excessive on the facts of this case.” [the fine was then discounted to £24,000 reflecting a guilty plea].

In total, the defendant’s defiance of planning laws cost him a criminal conviction and financial penalties of £100,000.

In Davey [2013] EWCA Crim 1662, the appellant was convicted of causing or permitting the wilful destruction of the tree, contrary to section 210(1) of the Town and Country Planning Act 1990. A confiscation order was made under the Proceeds of Crime Act 2002 in the sum of £50,000 and he was fined £75,000. The confiscation order reflected an unchallenged assessment of the increase in value of the appellant’s property as a result of the removal of the tree.

The Court held (once again addressing an argument based on double-counting):

“The fine was on any view very substantial, but although the confiscation order removed the financial benefit to the appellant, namely increasing the value of this property as a result of the removal of the tree, it did not remove the amenity benefit of the improved view that the appellant will enjoy while he remains in occupation of the property. The fact that this was a significant benefit is demonstrated by the lengths to which the appellant was prepared to go in order to achieve it. Accordingly, that was a factor that the judge would have been entitled to take into account.

In addition, there was the very serious aggravating feature that the tree was not owned by the appellant. It was his neighbour’s tree. Whilst its removal may have advanced the amenity value of the appellant’s property, doubtless it removed the amenity value for those other properties for which the tree would have been an attractive local feature and not an inconvenience. There was no evidence before the Court as to the appellant’s financial circumstances beyond the fact that he was clearly a man of some means. There is no limit to the amount of the fine that the Crown Court can impose.

The facts that we have already identified, demonstrate that this was an offence that was one of the most serious of its type. In addition, we consider that fines for this type of offence must include an element of deterrence.

…the offence called for a very heavy fine. In the absence of any evidence that a fine of this level was disproportionate having regard to the appellant’s means, and in the unusual circumstances of this case, we do not consider that it was manifestly excessive.”

So, the defendant did achieve a pleasant view, but overall it cost him £125,000 to do so.

In Rance [2012] EWCA Crim 2023 The appellant was convicted of an offence under s.9(1) and s.74(1) of the Planning (Listed Buildings in Conservation Areas) Act 1990. He was fined £120,000, and an order for costs of £100,000 was made.

The appellant had bought a three-storey Victorian house in London SW6 paying £2,005,000 for the property. Before doing so, he made three applications for planning permission. Following meetings with a planning officer, it became clear that the appellant’s preferred option was to demolish and rebuild to save money and ease construction. Work the appellant carried out made the building dangerous, and the authority reluctantly granted permission to demolish the front elevation, which had become unstable.

He was then granted permission to build a new house on the site, almost identical in appearance to the original. There was a financial benefit, approximately £100,000, due to zero-rating in respect of VAT, with additional costs saved because of the building of a replica.

The prosecuting planning authority applied to obtain a confiscation order. The application was rejected, but it left the question as to the appropriate level of the sentence in the context of the appellant’s access to funds.

Pursuant to s.9(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990, the Court is required to have regard to any financial benefit which has accrued or is likely to accrue to a defendant as a consequence of the offence. The judge took the view that the fine should include £100,000 as representing the benefit obtained from the property.

The Court said that whilst that was not an excessive sum to represent profits made out of the appellant’s unlawful demolition of the house, it does not follow that it was an appropriate sum to order; the Court’s obligation is to “have regard” to the financial benefit; there is no obligation to order the full amount or even a large proportion of it.

Added to that figure of £100,000 was the figure of £20,000. The Court said that the judge was entitled to take a severe view of this case; he was entitled to take the view that this was a cynical breach of provisions designed to protect the community from unlawful development.

The Court added: “We do not think that the level of fine should be assessed according to aesthetic considerations. The suggestion was made that the replacement building was of at least as great architectural quality as the original which it replaced. The real offence lay in the deliberate attempt to achieve the appellant’s aim by disregard of planning procedures”.

In the light of the history of fines for this type of offence, the Court found the appropriate fine would have been £50,000, which would include a proportion of the benefit it appears the appellant received.

The Court took the view that the order for costs was excessive in the light of the substantial work entailed in bringing fruitless confiscation proceedings, agreeing with the submission that only £60,000 was attributable to the trial and appeal. They concluded that the order for costs should be £40,000 to ensure that the total of the fine and costs was not excessive.

So in total, this defendant had to pay some £90,000, an expensive addition to his building budget.

What these and other cases illustrate is that the courts can often dispense severe penalties, but that at first instance, some Judges are prone to error when applying the law, leading to expensive appeal proceedings.

If you face proceedings of this type, do not hesitate to contact us at the earliest possible stage so that we can best advise you as to your options and ensure the law is correctly applied to the facts of your case.

How can we help?

If you would like to discuss any aspect of your case, please contact us.

The post Planning Law – An expensive business appeared first on CJ Law.

Resulting in 746 arrests so far, Operation Venetic has also led to the seizure of:

• In excess of £5.4m in cash
• More than 75 firearms, including an AK47 assault rifle, Uzi and Skorpian submachine guns, handguns, multiple grenades, and nearly 2000 rounds of ammunition
• In excess of two tonnes of Class A and Class B drugs
• More than 28 million Etizolam pills (Street Valium) from an illegal lab
• 55 luxury cars, and over 70 high-end watches

As well as seizing large amounts of weapons and drugs, the NCA, working closely in collaboration with policing partners, has foiled the plans of gangs to carry out kidnappings and executions on our nation’s streets by successfully mitigating more than 2000 threats to life.

The NCA says that:

“There were 60,000 users worldwide and around 10,000 users in the UK – the sole use was for coordinating and planning the distribution of illicit commodities, money laundering and plotting to kill rival criminals.”

The issues surrounding encryption

There are three main issues with relying on encryption:

1. How secure is it really?
2. Does the security of your device pose a security weakness? For example, the robust encryption offered by WhatsApp is of limited use if the device your using can be accessed with a 4 digit pin code, allowing your WhatsApp messages to be read at source.
3. Can your criminal network be trusted?

Evidential Issues

When cases resulting from Operation Venetic start to reach court, our focus will be on the admissibility of any evidence acquired from encrypted devices.

We will be looking at the following issues:

1. Is there evidence that the service provider committed a commercial breach of confidentiality?
2. Was the seizure of the device carried out in compliance with the law?
3. In instances where ‘Trojan Horse’ code was used, was it used appropriately and on what legal authority.
4. Were legal frameworks followed during the deployment of surveillance/ intercept authorisations?
5. Was there infringement of defendant’s property and privacy rights?

It is unlikely that these questions can be answered in isolation so far as the conduct of UK law enforcement is concerned, and that we will need to pay close attention to the interaction with foreign police forces and security services.

It is likely that the prosecution will attempt to assert public interest immunity to protect its investigation techniques (a tactic we have seen deployed in recent cases); this is a complex legal area that we have considerable familiarity and experience of, so can offer you the expertise required to meet such challenges head-on.

If you face the prospect of investigation or are facing prosecution, contact us now to ensure specialist legal representation.

[Image credit: National Crime Agency, Crown Copyright reproduced under licence]

How can we help?

If you need expert legal advice, then get in touch with us and let us help. We can advise on a plea, discuss defence strategies and outline potential sentences in a wide range of circumstances.

The post Encrochat and ‘Operation Venetic’ appeared first on CJ Law.

Custody time limits can, however, be extended if:

(a) There is a good and sufficient cause, and
(b) The prosecution has acted with all due diligence and expedition.

There are some other exceptions, but when considering trial delays during the Coronavirus pandemic, these are the ones that a court will focus on.

It seems to have been accepted that the current pandemic is a good and sufficient cause to extend a custody time limit, and that does appear to be, at the least, a superficially attractive argument.

When the cause of trial delays is examined in more detail and given that there were massive case delays before the pandemic, the justification for keeping people in custody for long periods pending trial evaporates.

In a recent judgment, HHJ Raynor sitting at Woolwich Crown Court rejected a prosecution application to extend custody time limits and freed a defendant on bail.

Judge Raynor’s reasoning for this was expressed in these terms:

a. In the current situation, the lack of available courtrooms to hear jury trials for defendants in custody is neither a good nor a sufficient cause to extend the custody time limit in this case;

b. The lack of money provided by Parliament to provide sufficient space for trials to be conducted does not amount to a good nor a sufficient cause to extend the custody time limit in this case;

c. The delays in bringing cases to trial which are being experienced by the courts will not be alleviated by the current steps that are being taken by Her Majesty’s Court Service;

d. The Protocol was a temporary measure;

e. The Protocol does not override independent judicial discretion and every case must be decided on its own merits. The Protocol contains rules of practice only and the relevant law is unaffected. The judge responsible for deciding each application will apply the law. In making this ruling I am applying the law.

f. Paragraph 15 of the Protocol (which is a rule of practice only) has been used to extend custody time limits, by reference (a) government health advice AND (b) directions from The Lord Chief Justice. The government health advice has changed since the Protocol was first published and I am not satisfied that the current government health advice continues to amount to a good and sufficient reason to extend a custody time limit.

g. Members of the public can (or soon will be able to) go into a restaurant to eat and use a gym. Jurors have been undertaking their duties in the existing criminal trials that are taking place. If sufficient investment had been made to create dozens (not ten) additional courts to undertake criminal trials then the situation regarding CTL extensions might be different. But it is not. The reality is that many defendants in custody will not be tried until well into 2021.

What does this mean for defendants remanded in custody awaiting trial?

By any measure, this is a judgment that is highly critical of the government’s response to the pandemic so far as it impacts the criminal justice system.

The judgment is not binding on other judge’s so there is no guarantee that others will take the same stance as Judge Raynor, but we expect that many will.

It is also likely that if the judgment is replicated in other cases, there will be an appeal to the High Court. But for now, this case represents a glimpse of hope for those remanded in custody with no hope of a trial date any time soon.

How can we help?

If you need specialist advice, then get in touch with us and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances

The post Coronavirus and Custody Time Limits – Some Good News appeared first on CJ Law.

It is therefore vital to ensure that a single piece of driving is not unduly punished when it comes to the imposition of penalty points.

To explain the issues that can arise, we will use the following examples:

(1) Jane is observed by a police officer to be driving at excess speed and in an erratic manner. Jane is subsequently prosecuted for speeding and careless driving.

(2) Edward has driven from his home in Nottingham to his holiday home in the Lake District. On that journey, he committed two speeding offences, detected by cameras some 100 miles apart. He receives two fixed penalty notices.

As a starting point, many might think that a double punishment for Jane is a little harsh but perhaps deserved for Edward (and others may disagree entirely!).

What does the law say about this situation?

The starting point is section 28(4) Road Traffic Offenders Act 1988, which provides:

“Where a person is convicted (whether on the same occasion or not) of two or more offences committed on the same occasion and involving obligatory endorsement, the total number of penalty points to be attributed to them is the number or highest number that would be attributed on a conviction of one of them (so that if the convictions are on different occasions the number of penalty points to be attributed to the offences on the later occasion or occasions shall be restricted accordingly).”

So, the key consideration in both of the examples above is whether the offences were indeed committed ‘on the same occasion’.

When we consider Jane’s case, there is no doubt at all that the speeding and careless driving were committed on the same occasion.

But what about Edward, where the offences were committed some 100 miles apart. Is it significant that it was a single journey from A to B? Would it matter if he had broken the trip by stopping for petrol or a rest break?

Edward’s case is more tricky to resolve than Jane’s. Still, the difference in outcome could have significant ramifications for Edward, so in cases such as this, we fight very hard to minimise the sentencing outcomes.

There is a lack of English case law on this topic, and a significant difference of approach between the English and Scottish courts.

Failing to stop and then failing to report arise out of the same incident and therefore are offences on the same occasion (Johnson v Finbow [1983] 1 WLR 879).

A decision of the Scottish High Court, McKeever v Walkingshaw (1995) 1996 SLT 1228 decided that a single course of driving may give rise to offences having occurred on more than one occasion (speeding and then less than two miles later committing a further offence).

Similarly, a moving traffic offence which resulted in the driver being stopped and asked to give a specimen of breath (which he declined) was held to be separate occasions (Cameron v Brown (1996) 1997 SLT 914).

Whether offences occur on the same occasion is primarily a matter of fact.

Therefore, in every case where we act, we ready ourselves for any argument that might present itself. We hear of lots of situations where double or greater punishment is imposed, in circumstances where there was a solid argument to invoke the protection of the statute.

How can we help?

If you need specialist advice, then get in touch with us and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.

The post Penalty Points – Avoiding Double Counting appeared first on CJ Law.

Over recent weeks, the police have been eager to enforce compliance, even criticising the MP Stephen Kinnock over social media for paying his father a visit on his birthday.

Given the importance of easing the pressure on the NHS, it is likely that the Police may adopt a tougher stance as the crisis worsens.

Restrictions on movement

During the emergency period, no person may leave the place where they are living without reasonable excuse.

A reasonable excuse includes the need—

(a) to obtain basic necessities, including food and medical supplies for those in the same household (including any pets or animals in the household) or for vulnerable persons and supplies for the essential upkeep, maintenance and functioning of the household, or the household of a vulnerable person, or to obtain money, including from any business listed in Part 3 of Schedule 2.

(b) to take exercise either alone or with other members of their household;

(c) to seek medical assistance, including to access any of the services referred to in paragraph 37 or 38 of Schedule 2;

(d) to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006(1), to a vulnerable person, or to provide emergency assistance;

(e) to donate blood;

(f) to travel for the purposes of work or to provide voluntary or charitable services, where it is not reasonably possible for that person to work, or to provide those services, from the place where they are living;

(g) to attend a funeral of—

(i) a member of the person’s household,
(ii) a close family member, or
(iii) if no-one within sub-paragraphs (i) or (ii) are attending, a friend;

(h) to fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings;

(i) to access critical public services, including—

(i) childcare or educational facilities (where these are still available to a child in relation to whom that person is the parent, or has parental responsibility for, or care of the child);
(ii) social services;
(iii) services provided by the Department of Work and Pensions;
(iv) services provided to victims (such as victims of crime);

(j) in relation to children who do not live in the same household as their parents, or one of their parents, to continue existing arrangements for access to, and contact between, parents and children, and for the purposes of this paragraph, “parent” includes a person who is not a parent of the child, but who has parental responsibility for, or who has care of, the child;

(k) in the case of a minister of religion or worship leader, to go to their place of worship;

(l) to move house where reasonably necessary;

(m) to avoid injury or illness or to escape a risk of harm.

The word ‘need’ prefaces the exceptions and this implies an added necessity test.

Requirement to close premises and businesses during the emergency

A person responsible for carrying on a business which is listed in Part 1 of Schedule 2 must—

(a) during the emergency period—

(i) close any premises, or part of the premises, in which food or drink are sold for consumption on those premises, and
(ii) cease selling food or drink for consumption on its premises; or

(b) if the business sells food or drink for consumption off the premises, cease selling food or drink for consumption on its premises during the emergency period.

The provisions in relation to business closure are particularly complex and a number of police interventions have already been made. Please contact us for accurate up to date advice if you are unsure as to your legal obligations.

Restrictions on gatherings

During the emergency period, no person may participate in a gathering in a public place of more than two people except—

(a) where all the persons in the gathering are members of the same household,

(b) where the gathering is essential for work purposes,

(c) to attend a funeral,

(d) where reasonably necessary—

(i) to facilitate a house move,

(ii) to provide care or assistance to a vulnerable person, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006,

(iii) to provide emergency assistance, or

(iv) to participate in legal proceedings or fulfil a legal obligation.

Penalties

Breach of these emergency regulations can result in fixed penalties (of up to £960) and unlimited fines.

Adults must do all they can to ensure that children comply, and failure in that regard can itself result in prosecution.

Other enforcement measures can be taken concerning business premises and failing to comply with restrictions.

If you have received a fixed penalty that you wish to challenge or are being investigated or prosecuted for an alleged breach, our expert team are able to advise.

How can we help?

If you need specialist advice, then get in touch with us and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.

The post Covid 19 Lockdown – the law appeared first on CJ Law.

The purpose of the Coronavirus Act is to enable the Government to respond to an emergency situation and manage the effects of a covid-19 pandemic.

A severe pandemic could infect up to 80% of the population leading to a reduced workforce, increased pressure on health services and death management processes.

The Act contains temporary measures designed to either amend existing legislative provisions or introduce new statutory powers which are designed to mitigate these impacts.

The Act aims to support Government in the following:

• Increasing the available health and social care workforce
• Easing the burden on frontline staff
• Containing and slowing the virus
• Managing the deceased with respect and dignity
• Supporting people

What are the changes?

The efficiency and timeliness of court and tribunal hearings will suffer during a covid-19 outbreak. Restrictions on travel will make it difficult for parties to attend court and without action a significant number of hearings and trials are likely to be adjourned. In criminal proceedings, the courts have a duty to deal with cases effectively and expeditiously and that includes making use of technology such as live video links, telephone or email where this is lawful and appropriate. Video link technology is increasingly being used across the court estate enabling greater participation in proceedings from remote locations. The courts currently have various statutory and inherent powers which enable them to make use of technology.

The Act amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.

Health Protection Regulations

The Act permits ministers to create new criminal offences by regulations issued under existing public health legislation. Such offences are to be triable summarily only and may not be punished with imprisonment.

Enforcement Powers

The Act provides for various enforcement orders to ensure public health and safety are maintained; violation of these orders, including obstruction etc. will be a criminal offence. Many of the emergency powers under the Act can result in criminal sanction if lawful directions are not obeyed.

Infected persons

Schedule 20 of the Act provides for screening and quarantining of infected persons (or persons suspected to be infected).

In enforcing schedule 20 powers (and similar provisions apply to other powers), a constable may:-

– use reasonable force;
– enter any place; and
– give reasonable instructions to the person (though he must inform the person that informing him of the reason for the instruction that it is an offence to fail to comply).

Events, gatherings and premises

Schedule 21 covers events, gatherings and premises.

The provisions give the Secretary of State the power to prohibit or restrict events and gatherings, and to close premises, if the public health situation deems it necessary.

This streamlines existing legislation in England and Wales, to ensure that powers to prevent events or gatherings can be deployed as quickly as possible in the event this is justified by the evidence.

This can be deployed if, having had regard to the relevant advice, such a prohibition or restriction would:

a. prevent, protect against or control the incidence or transmission of coronavirus, or

b. facilitate the most appropriate deployment of medical or emergency personnel and resources

Conclusion

This legislation has passed through parliament at remarkable speed and with little scrutiny. We are on hand to advise anyone who faces investigation or prosecution as a result of alleged non-compliance. At all times, we will remain vigilant to ensure that the State does not abuse emergency legislation.

How can we help?

If you need specialist advice, then get in touch with us and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.

The post Emergency Laws Now in Force appeared first on CJ Law.

The starting point is that no prosecution can go ahead unless there is a realistic prospect of conviction, but how the prosecution case is formulated remains a matter for the Crown Prosecution to decide.

These are common issues:

1. If a witness will not cooperate, the prosecution has the option to apply for a witness summons to force that witness to court. Almost all witnesses are ‘competent’, which means that they can be called to court to give evidence, under arrest if they refuse to attend voluntarily. Once in the witness box, the witness may then decide to answer questions. If a witness refuses to answer questions, they may be punished for contempt of court, and this threat is often enough to persuade them to comply. In some instances, a witness cannot be forced to answer questions, referred to in law as ‘not compellable’. We can advise further on the rules that apply to your specific case.

2. The prosecution may be able to rely on the witness’s evidence by making an application under the hearsay rules; this procedure is often used if the witness is too frightened to give evidence or cannot be found. The rules here are particularly complex, and all our solicitors are well versed in their proper application.

3. The prosecution may be able to proceed without the witness’s evidence, relying on other witnesses or sources of evidence. In cases where the police attend an alleged domestic violence incidence, the officers will very often have body worn video cameras in operation, these record what is said and done when they arrive. In law, this is termed real evidence, and may also amount to what is referred to as ‘res gestae’ evidence, which means that it may well be admissible. So the evidence of a person who makes an accusation in the immediate aftermath of the incident may find that this account is admissible at trial, even without their attendance. Similarly, any admissions recorded at the scene, whether via video or other means, may also be admissible under normal principles. The same may well apply to ‘999’ calls to emergency services.

There is a wider public interest in pursuing some prosecutions, even where the immediate victim of the crime does not wish the matter to progress to court or trial. It is therefore essential that you obtain legal representation as soon as possible. There is a right to free legal advice at the police station, and legal aid may be available if you are later charged and have to appear before a court.

The legal rules outlined above give only a brief flavour of the legal framework, the legislation and case law is voluminous and seldom as clear cut as some might think.

We work hard to ensure that your rights are protected, and the best outcome is secured.

How can we help?

If you need specialist advice, then get in touch with us and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.

The post Prosecuting Without A ‘Victim’ appeared first on CJ Law.

There are many sub-plots along the way, including the blackmail of several individuals keen to suppress unsavoury stories making their way into the public domain.

What is ‘blackmail’?

Section 21 of the Theft Act 1968 defines the offence in the following terms:

“A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief:

(a) that he has reasonable grounds for making the demand; and

(b) that the use of the menaces is a proper means of reinforcing the demand.

The nature of the act or omission demanded is immaterial, and it is also immaterial whether the menaces relate to action to be taken by the person making the demand.”

In almost all instances the offence involves a threat to reveal information known about a person unless that person, or another on their behalf, pay to keep it a secret.

What is the penalty for blackmail?

The offence carries up to 14 years imprisonment, so is one of the most serious crimes on the statute book.

In Hadjou 11 Cr App R (S) 29 the offence was described as one of the ugliest and most vicious criminal offences, akin to “…attempted murder of the soul”.

These are some examples of the general approach to sentencing:

Mincher [2016] EWCA Crim 1528 – Two years imprisonment, suspended for two years judged to be unduly lenient and replaced with five years imprisonment. Defendant threatened the complainant that if he did not give her the money she wanted, she would tell the police that he raped her. Defendant took in total £40,000 from the complainant and was described as a socially awkward and vulnerable man.

The court held:

“Blackmail [is] one of the most serious and vicious offences in the criminal calendar. The authorities suggest that threats to disclose discreditable conduct, whether that conduct occurred or not, are to be taken even more seriously because the injury done to the victim “tends to be enduring fear, ever present anxiety and fear of discovery which gnaws away at the victim for long periods”.”

MJC [2015] EWCA Crim 1519 – 2 years imprisonment reduced to 8 months imprisonment. The defendant was a 33-year-old married man of good character; his wife’s 14-year-old sister became involved in an exchange of sexually explicit images with a 16-year-old boy, the complainant. The defendant, aware of the pictures, threatened to report the complainant to the police unless he was paid £75.

The court held:

“In the present case, it is evident that there was no sophistication or premeditation in the blackmail. However, for a mature man to make the kind of threats he did to a misguided young man, as the appellant did in this case, albeit over a limited period of time, was plainly deeply unpleasant.”

While there may be a wide variation in sentencing, the result being very much fact specific and no case having the status of a sentencing guideline, in almost all cases a sentence of imprisonment will result.

How can we help?

If you need specialist advice, then get in touch with us and let us help. We can advise on a plea, defences and potential sentences in a wide range of circumstances.

The post “Blackmail” – “…attempted murder of the soul.” appeared first on CJ Law.