What is Burglary?

Burglary is defined by s9 of the Theft Act 1968 . A person can be guilty of burglary in two ways:
  • They enter a building as a trespasser with the intent to steal, inflicting grievous bodily harm or doing unlawful damage to the building or anything in it;
  • Having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm.

What needs to be established to prove the offence of burglary?

The elements of the offence are:
  • That the person enters a building or part of a building – partial entry is sufficient, so any part of their body, such as their arm, entering would be enough;
  • Building – this can be a house, or a non-dwelling building;
  • That they do this as a trespasser – this can include someone being given permission to enter a part of a house but then entering another part they do not have permission to enter;
  • Intent – the intention is to steal, inflict grievous bodily harm or do unlawful damage
Burglaries can take place in a dwelling or a non-dwelling property. Whether it is a dwelling or not is a questions of fact, although s9(4) of the Act does state that an inhabited vehicle or vessel could be considered a dwelling. In the case of R v Hudson [2017] EWHC 841 Admin it was stated that the more habitable a building the more likely it is to be a dwelling.
Whether or not a property is a dwelling is important for sentencing purposes.

Sentencing a Burglary

Burglary is an either way offence – which means it can be heard in the Magistrates Court or the Crown Court. Although, if it is a third domestic burglary then the offence becomes indictable only and the defendant would serve at least three years in custody.
The maximum sentence for a domestic/dwelling burglary is 14 years and for a non-domestic burglary is 10 years.

These offences can be complicated and if you find yourself accused you should seek independent legal advice. Our solicitors regularly represent clients at the police station and court for offences ranging from shoplifting to complex frauds.

SO CONTACT US TODAY by clicking here or calling us on 01926 886 007.
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Robbery

Robbery is an offence under s8 of the Theft Act 1968. It is an aggravated form of theft.

S8(1) Theft Act 1968: A person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.

What are the Elements of Robbery?

1. It will need to be proved that the person stole. In s1 Theft Act 1968 the definition of steal is:

Dishonestly appropriate property belonging to another with the intention to permanently deprive.

All of these elements will need to be proved.

2. Immediately before or at the time of stealing

The force used must be immediately before or after stealing. If it is not, it’s not a robbery. However, the courts have taken the view that appropriation (an element of theft) is an ongoing act and therefore, a question to be left to the jury. (R v Hale (1979) 68 Cr. App. R. 415)

3. Use of force or threat of force

What amounts to force will be a question of fact for the jury to consider.

The force MUST be used in order to steal. So if a person hits another person and then decides to steal from them, this would not be a robbery – it would be a theft, and probably an assault.

Robbery is a serious offence. It is indictable only, meaning it can only be heard in the Crown Court. The maximum sentence for a robbery is life imprisonment.

 

These offences can be complicated and if you find yourself accused you should seek independent legal advice. Our solicitors regularly represent clients at the police station and court for offences ranging from shoplifting to complex frauds.

SO CONTACT US TODAY by clicking here or calling us on 01926 886 007.

 

 

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The Offence of Theft

What is Theft?

We all know what a theft is but the legal definition may surprise you.
Theft is defined by the Theft Act 1968 s1 as:
  • Dishonestly
  • Appropriates
  • Property
  • Belonging to another
  • With the intention to permanently deprive.

The Crown Prosecution Service must prove each element of the offence in order for a person to be found guilty of theft.

So what does each element of Theft mean?

The section of the Act goes on to explain each element that needs to be proved:

DISHONESTLY

s2 Theft Act 1968 defines dishonesty, although case law has defined it further.

s2 of the Act states that there is no dishonesty if a person believes:
  • They would have a legal right to take the property for themselves; or
  • The owner would consent to them taking it if they knew; or
  • If they cannot find the person the property belongs to by taking reasonable steps to do so.

But caselaw then goes on to define dishonestly further.

For many years the case of R v Ghosh [1982] EWCA Crim 2 established a two-stage test to prove dishonesty:

  1. According to the ordinary standards of reasonable and honest people, was what was done dishonest?
  2. If it was dishonest by those standards, did the defendant realise that reasonable and honest people would regard the conduct as dishonest?

But, much to the excitement of criminal practitioners, in 2018 the Supreme Court set out a new test:

Ivey v Genting Casinos [2018] AC 391:

“…the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

The new test is from a civil case but the Divisional Court adopted it as the correct approach.

APPROPRIATES

s3 of the Act defines appropriation as assuming the rights of the legal owner of the property without consent. It can include where permission was originally granted, for example, taking a car for a test drive from a garage but not returning it.

PROPERTY

s4 defines property. It includes money and all other property, real or personal, including things in action and other intangible property. There are further limitations on property contained in the Act.

BELONGING TO ANOTHER

s5 sets out ‘belonging to another’ and where property belongs to another if that person has possession or control of it. An example would be, the legal owner giving permission to a friend to use their camera for the weekend and it is stolen by someone else – belonging to another is still made out.

WITH THE INTENTION TO PERMANENTLY DEPRIVE

This is contained in s6 of the Theft Act 1968 and is not as straightforward as it may sound. Treating the thing as his own would amount to a theft. So, for example, if a legal owner gave a friend a camera to use for a weekend and then the friend forgot to return it, and despite the owner’s requests for it to be returned the friend still kept it, that would amount to a theft.

There are many other offences contained within the Theft Act 1968 such as Robbery or Burglary, as well as other dishonesty offences such as Fraud, which can overlap with theft.

These offences can be complicated and if you find yourself accused you should seek independent legal advice. Our solicitors regularly represent clients at the police station and court for offences ranging from shoplifting to complex frauds.

SO CONTACT US TODAY by clicking here or calling us on 01926 886 007.
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Public Order Offences

What are Public Order offences?

There are many public order offences set out in the Public Order Act 1986. They vary in seriousness and cover a wide range of situations.

The offences include:

s5 Public Order Act 1986 – Causing harassment, alarm or distress by using threatening, abusive or insulting behaviour. The sentence for this is usually a financial penalty.

s4A Public Order Act 1986 – Intentional harassment, alarm or distress. The offence is caused by using threatening, abusing or insulting words, behaviour or disorderly behaviour, either in person or in writing. The maximum sentence for s4A Public Order Act 1986 is six months in prison, unless it is found to be racially aggravated, in which case it could be heard in the Crown Court and a harsher penalty given.

s4 Public Order Act 1986 – Fear or provocation of violence, caused by using towards another threatening, abusive or insulting words or behaviour, INTENDING to cause that person to believe that immediate violence will be used against them, or another person. Or to provoke the immediate use of violence by them. Again, the maximum sentence is six months in prison, unless said to be racially aggravated.

s3 Public Order Act 1986 – Affray. This offence requires 2 or more people who are using threatening behaviour and causing others to fear for their safety. Situations often include nights out that result in a disturbance. This is a more serious offence and can lead to a 3 year prison sentence at the Crown Court.

s2 Public Order Act 1986 – Violent Disorder. This is caused when 3 or more people use or threaten unlawful violence which would cause a person present to fear for their personal safety. It is a serious offence and can carry a prison sentence of up to 5 years.

s1 Public Order Act 1986 – Riot. This is caused where 12 or more people are present together and use or threaten unlawful violence and are acting together with ‘common purpose’. The conduct of them together must be such that an average person would feel fear. This is the more serious of the public order offences and can carry a sentence of up to 10 years in prison.

New Sentencing Guidelines in respect of Public Order Offences recently came into force.

The law in this area is fairly complex and there are defences available. If you find yourself accused of a public order offence you should seek legal advice, and you can contact a member of our team here.

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Drugs Offences – Know the Law

In the UK the majority of offences relating to drugs are contained in the Misuse of Drugs Act 1971
The most common offences we see in Court are possession of a controlled drug, possession with intent to supply, the unlawful supply (give/sell/share) of a controlled drug and allowing premises to be used for the use of drugs, but there are many offences relating to drugs –  too many to cover in one page.
The offences mentioned are either way offences meaning they can be heard in the Magistrates Court or the Crown Court.
The principle behind the legal restrictions placed on such substances is to control the use and distribution of potential harmful drugs.
In the UK, illegal drugs are placed into three different categories:
Class A
Crack cocaine, cocaine, ecstasy (MDMA), heroin, LSD, methadone, magic mushrooms, crystal meth
Class B
Amphetamines, barbiturates, cannabis, codeine, methylphenidate (Ritalin), synthetic cannabinoids, synthetic cathinones (e.g. mephedrone, methoxetamine), ketamine
Class C
Anabolic steroids, benzodiazepines (diazepam), gamma hydroxybutyrate (GHB), gamma-butyrolactone (GBL),  piperazines (BZP), khat

SENTENCING

For possessing illegal drugs the penalties are:
  • Class A: up to 7 years in prison, an unlimited fine or both
  • Class B: up to 5 years in prison, an unlimited fine or both
  • Class C: up to 2 years in prison, an unlimited fine or both
For producing or supplying illegal drugs the penalties are:
  • Class A: up to life in prison, an unlimited fine or both
  • Class B: up to 14 years in prison, an unlimited fine or both
  • Class C: up to 14 years in prison, an unlimited fine or both
There are a range of penalties a Court would look at, depending on the offence circumstances, mitigation and history.

DEFENCES

There are defences contained in s28 Misuse of Drugs Act 1971 in relation to offences of possession, possession with intent, production and supply (as well as other offences not covered here):
  • He neither knew, suspected, nor had reason to suspect the existence of some fact that the prosecution is required to prove, for example that he was in possession of the drug.
  • He neither believed, suspected, nor had reason to suspect that the substance in question was a controlled drug.
  • That he believed the product to be a controlled drug, which had it been that drug, would mean that he would not have been an offence at the time that he committed it.
Drugs offences are taken very seriously, and it is crucial you take advice if you find yourself facing prosecution. For more information or to discuss your case contact us here or call us on 01926 886 007.
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County Lines – What is it?

‘County Lines’ – What is it?

You have no doubt heard in the news the term ‘County Lines’ in respect of UK police and law enforcement agencies. It is a term used by police and law enforcement agencies to refer to the networks of organised crime groups and gangs involved in the exportation of illegal drugs into the UK using ‘deal lines’ – communication networks (mobile telephone lines) and other forms of networks. They exploit vulnerable groups of people, adults and children, using sexual violence, coercion and intimidation in order to run these networks. Those involved will be subject to threats on themselves and their families, amongst other forms of violence to exert fear.

The National Crime Agency has identified evidence of city-based organised crime gangs dealing into new areas of the country, such as coastal towns where they recruit vulnerable people to courier, organise and sell the drugs.

Increased activity in ‘County Line’ type groups and the complicated networks means the police and CPS look at each on a case by case basis, with different legislation available to reflect the conduct taking place. The involvement of young, vulnerable people involves not only the police but other protective agencies for safeguarding purposes.

There may be cases which have to be considered under The Modern Slavery Act 2015 – included offences of trafficking, forced labour and exploitation. Defences for those who appear to be involved in such criminal activities as a result are available and it may be that a person found to be involved in criminal activity as a result of being exploited would be required as a witness for the prosecution, rather than prosecuted themselves.

The Policing and Crime Act 2009 contains provisions for injunctions to be sought by the police and local authorities against gang-related drug dealing activity, allowing courts to place prohibitions or requirements on the activity of a person involved in such activity.

Then of course, the Misuse of Drugs Act 1971 offences covering offences of possession, possession with intent to supply and production.

As ‘County Line’ activity inevitably involves the use of violence and perhaps weapons then legislation in relation to those offences are also available to the prosecuting authorities.

The issue is a very serious and complicated one and the Children’s Society Charity estimates 46,000 children in England are involved in Criminal Activity.

A detailed document called ‘County Lines Typology’ was drafted in 2018 covering in more detail which can be accessed at the CPS website here.

If you have been charged with offences in relation to drugs, or any of the above, please contact us in order to discuss your case. We have seen more offences  that reflect the issues above and our solicitors are expert at advising on such matters.

 

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What is an Assault?

Assault and Battery

We are often asked to represent clients charged with an assault or battery. “But I didn’t hit anyone”, they’ll say. Or, “I only knocked into them, I didn’t batter anyone”, not realising a simple knock or even no knock at all will suffice for an assault or battery charge.

An assault, or common assault being the correct term is when the apprehension of immediate unlawful violence is caused to another. It can be committed intentionally or recklessly. Recklessly means when a risk of assault is foreseeable but the risk is taken anyway. An example would be a person throwing a mobile phone at another and missing.

Battery is when unlawful force or violence is used on someone. Like a common assault, it is committed intentionally or recklessly and an example would be if the mobile phone that was thrown, actually hits the other person.

It is for the Prosecution to prove it was committed intentionally or recklessly by the defendant.

What is the Punishment?

s39 of the Criminal Justice Act 1988 sets out the punishment for both assault and battery. They can only be heard in the Magistrates Court and carry a maximum punishment of 6 months imprisonment and/or a fine.

However, if an offence is found to be racially/religiously aggravated under the Crime and Disorder Act 1988 then it becomes an either way offence, meaning it could be sent to the Crown Court. Very often we have a client who admits assaulting a person but denies the racial element of the offence. It is always best to seek legal advice.

Is there a Defence?

The most common defence used for a charge of common assault/battery is self defence, or defence of another. It is always best to seek legal advice. There is often a fine line between self defence and retaliation in the moment and a solicitor will be able to advise accordingly.

CONTACT US

At John Onions Solicitors we have been representing clients for many years and we know that no case is the same. If you have been charged with an assault, or any other criminal matter, please contact one of our specialists here, or call 01926 886007.

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New Smart Motorway Rules

Beware the new Smart Motorway rules

You’ve probably seen the new Smart Motorways popping up around the country. Road improvements that seem to be taking forever have been underway around Gatwick Airport on the M23, parts of the M25 have suffered delays due to work, Motorways around Birmingham have seen improvements as well as Manchester and the M1 North. It’s been a huge undertaking and is continuing still.

The new Smart Motorways use technology such as CCTV, sensors and electronic signs to monitor and control traffic, vary speed limits and close lanes in order to sooth traffic flow. Dynamic hard shoulder schemes open up the hard shoulders to take pressure off at busy times. The technology is said to improve journey times and improve driver safety. Warning signs are activated above the lanes to alert drivers to upcoming hazards or traffic jams, open or closed lanes.

New Law

On the 10th June the rules on smart motorways changed. The new rule states that any motorist driving in a closed lane marked with a red ‘X’ could be fined up to £100. Lane closures happen for a variety of reasons including emergency service access, breakdowns and accidents. Drivers are given plenty of notice with the red ‘X’ sign and variable speed limit signs shown above each lane. So using a lane marked with the ‘X’ is not only illegal but could be dangerous.

Other rules for driving on Smart Motorways
  • Keep to the variable speed limits – better technology means you’re more likely to be caught out!
  • Keep left – this applies to all motorway driving, not just Smart Motorway
  • A solid white line indicates a hard shoulder and should not be driven in
  • A broken white line shows that it is a normal lane
  • Do not drive in the hard shoulder unless the sign above states

If you have any concerns or if this affects your case please contact us on 01926 886007 or contact us here. And safe driving folks

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Revving up for the Electric Car

The electric car has increased in popularity over the years. With improvements to infrastructure, eg charging stations, and developments in technology, the electric car has become a viable choice for drivers wishing to reduce their carbon emissions. In fact, with some manufacturers opting to only produce hybrid or electric cars, they are likely to be the ONLY option in the not too distant future.

An electric car’s engine is not only cleaner but also a lot quieter. If fact, the sound emitted from an electric vehicle traveling below 12mph is almost zero.

But as from the 1st July 2019, all cars made in the EU will be required to have fake vehicle sounds added to them. This comes about as a result of campaigns and research by charities such as the RNIB and Royal Society for the Prevention of Accidents.

Campaigners have been concerned about the safety of other road users, pedestrians and cyclists, and especially those with visual impairments.  A lot of our road awareness comes from listening (who remember stop, look and listen?) and due to the fact an electric car is almost silent, campaigners urged the manufacturers to make changes and add the fake vehicle sounds, or Acoustic Vehicle Alert Systems (AVAs). The car must emit a sound of at least 56 decibels, which is similar to the sound of a normal conversation between a group of people.

It will take time to see if this change does work as hoped. The initiative has already been adopted in the United States and Norway, where further studies are already underway as to the success of the AVAs.

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More success stories

We’ve had a busy few months at John Onion’s Solicitors and some great results, including an excellent appeal result at the Court of Appeal.

A recent 4 handed robbery case, where we represented one of the co-defendants was successfully dismissed on application by Lucy Tapper of Furnival Chambers.

Another success where a sentence for robbery was significantly reduced from 6 years to 4 by the Court of Appeal.

A further success this week (31st October 2018) of an acquittal by one of our in-house advocates Richard Baker. A domestic matter where our client had been remanded for some time. He was acquitted after trial and released.

 

Contact us

If you have any questions about this or any other criminal law or motoring law matters please contact us here.

 

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