Another great result for Kate Hatton at Leamington Magistrates Court

Kate Hatton recently represented someone for two assault PC matters at Leamington Spa Magistrates Court.

The client was a very vulnerable man and despite the seriousness of the offences the Court took into account his mitigation presented by Kate Hatton. He was sentenced to a 12 month conditional discharge.  Due to his limited means Ms Hatton was able to persuade the Court not to impose any prosecution costs on him and simply added the victim surcharge of £20.

If you are facing an allegation of assault PC, or any other criminal matter, please contact us on 01926 886 007 or complete the contact form on our website

 

 

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John Onions Solicitors support the Bar Associations action over Legal Aid cuts

All of us at John Onions Solicitors are supporting the recent action by the Bar Association over the legal aid cuts. As it stands currently 93 Chambers are not taking instructions post April 1st 2018 onwards until further notice.

You may have seen news of the action in the Press recently – it makes for a depressing read – and we are happy to support the action taken.

If you have any concerns or if this affects your case please contact us on 01926 886007

 

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Success at Leamington Spa Magistrates Court for Kate Hatton

Kate Hatton, our in-house Barrister got a great result at Leamington Spa Magistrates Court recently.

She represented a client who faced a charge of s20 GBH without intent and a s39 assault – both serious charges where he faced a prison sentence if convicted. He was also charged with a minor matter of criminal damage to a mobile phone.

Kate’s client pleaded not guilty to the two assault matters and guilty to criminal damage. The case then went for trial.

On the day of trial the victim of the assaults did not attend. It was made it clear to the Crown that they did not wish to proceed with the case. However, the Crown wished to proceed on the 999 call to the police under hearsay provisions. They also relied on photos of the injuries and initial account at the scene.

Kate Hatton made a s78 PACE application to exclude the 999 call as evidence. She also made an application under the Human Rights Act – both applications were refused.  The prosecution’s case was heard.

At half time Kate Hatton made a submission of no case to answer and succeeded.  Both assault charges were thrown out and the client walked away with a financial penalty for damage to a mobile phone.

Needless to say he was very happy with this result and Kate’s tenacity in the case.

 

Kate Hatton is a regular at Leamington Spa Magistrates Court and Warwick Crown Court. To contact her or one of our other solicitors click the link here, or contact us on 01926 886007.

 

 

 

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Changes to Domestic Violence Sentencing

February 2018 saw new sentencing guidelines being introduced in relation to domestic violence offences in the UK. These will come into force on the 24th May 2018 making them applicable to anyone convicted on or after that date of such an offence.

You can read the overarching principles here.

Violence in a domestic setting is considered more serious due to the breach of trust and security that should exist between people in familial or intimate relationships. It is therefore already sentenced more harshly. The new guidelines offer the courts a more structured approach to sentencing.

In line with the further protections for victims of domestic violence Home Secretary Amber Rudd plans to increase the use of screens and video links in court for achieving best evidence. But there are conflicting responses from practitioners.  You can read more about that here.

 At John Onions Solicitors we regularly defend people accused of domestic violence. Unfortunately, due to the cuts in legal aid many defendants find themselves without a solicitor. We are often appointed by the court to conduct cross-examination on behalf of the accused in order to protect the aggrieved from being cross-examined by them in person. If you find yourself charged with such an offence please contact us to discuss your case.

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Pete Gotch has been in the news – More Disclosure Issues

You’ve probably heard a lot about disclosure in the news lately.  Disclosure difficulties are faced by the defence every day, often with absolutely none until the day of trial. We’ll write a further article about this subject but you can read about Pete Gotch’s great result in the Coventry Telegraph here

He’s been in the national press too here – the Daily Mail

UPDATE

Police launch review after accusations of withholding evidence

 

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Landlords and Banning Orders

Landlords to Face Additional Punishment

The government has announced that it intends to bring into force a number of provisions contained in the Housing and Planning Act 2016.

From 6 April 2018 the Act will allow local authorities to apply for a banning order where a landlord has been convicted of a ‘banning order offence.’

What is a banning order?

A banning order will ban a person from:

(a) letting housing in England,
(b) engaging in English letting agency work,
(c) engaging in English property management work, or
(d) doing two or more of those things.

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

What offences might prompt an application for a banning order?

The following offences will trigger an application for a banning order:

Any offence involving fraud, the production, possession or supply of illegal drugs, violent and sexual offences, are appropriate banning order offences subject to there being a link between the property being rented out and/or the tenant/household.

The offences below (subject to there being a link between the property being rented out and/or the tenant/household):

  •  An offence under sections 327-329 Proceeds of Crime Act 2002.
  •  An offence under sections 2 or 2A Protection from Harassment Act 1997.
  •  An offence under sections 30 or 48 Anti-social behaviour, crime and Policing Act 2014.
  •  An offence under sections 7, 9, 21 or 22 Theft Act 1968.
  •  An offence under sections 1(1) or 2 Criminal Damage Act 1971.

Any of the following offences:

  •  Illegally evicting or harassing a residential occupier in contravention of the Protection from Eviction Act 1977 or the Criminal Law Act 1977;

 Any of the following offences under the Housing Act 2004:

  •  Failure to comply with an Improvement Notice
  •      Offences in relation to licensing of Houses in Multiple Occupation (HMOs)
  •      Offences in relation to licensing of houses under Part 3 of the Act
  •      Allowing a HMO that is not subject to licensing to become overcrowded
  •      Providing false or misleading information
  •      Failure to comply with management regulations in respect of HMOs;

 An offence under the Health and Safety at Work etc. Act 1974 where a person contravenes section 36 of the Gas Safety (Installation and Use) Regulations 1998;

 Failure to comply with a Prohibition or Emergency Prohibition Order under sections 20, 21 and 43 of the Housing Act 2004;

 An offence under section 32 of the Regulatory Reform (Fire Safety) Order 2005.

Can I argue against the making of the order?

Yes, you can make representations both to the local authority before the making of the application and to a tribunal if proceedings are commenced.

There are the following protections:

Before applying for a banning order the authority must give the person a notice of intended proceedings—

(a) informing the person that the authority is proposing to apply for a banning order and explaining why,
(b) stating the length of each proposed ban, and
(c) inviting the person to make representations within a period specified in the notice of not less than 28 days (“the notice period”).

In addition:

  •  The authority must consider any representations made during the notice period.
  •      The authority must wait until the notice period has ended before applying for a banning order.
  •      A notice of intended proceedings may not be given after the end of the period of 6 months beginning with the day on which the person was convicted of the offence to which the notice relates.

What happens if I breach the order?

Breach of a banning order is a criminal offence that carries up to 6 months imprisonment and an unlimited fine. It is also highly likely that confiscation proceedings under the Proceeds of Crime Act will follow.

How we can help

This type of law illustrates perfectly the often-hidden consequences of a criminal conviction.

To represent people properly, it is not enough that a solicitor understands only the main offence – a wider appreciation of the effects on a defendant must be understood and considered during case planning.

Our highly experienced team can assist you in navigating these complex penalties and working towards the most favourable resolution.

Contact us on 01926 886 007 or go to our contact page here

 

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The “Right to be Forgotten”

What is the “Right to be forgotten”.  Redemption has always been an important part of our justice system; you do the crime, you do the time. Once your debt is paid, you should then be free to start again, without the past putting a permanent blot on your name.

We all recognise that there must be limits to this principle, so if convicted of murder or rape, you are unlikely ever to be able to erase the past. But for relatively minor offending, or offending that is so far in the past it is now irrelevant, it might not be unreasonable to expect that one could move on.

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

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

This ‘right to be forgotten’ is not a new concept. The principle was long-ago recognised by the UK Parliament with the Rehabilitation of Offenders Act 1974. That Act provides that after a specified period of time (which varies according to the sentence that was imposed) a person’s previous convictions are regarded as having been “spent”. The underlying rationale is that, for all but the most serious offences, people should not have a lifelong “blot” on their record but should be able to live without that shadow, and the consequences it may have for their employment or other areas of their life. So, the principle of a “right to be forgotten” was recognised in domestic law many years ago, and long before data protection laws came along. Its emergence in the field of data protection simply reflects the significant development in the dissemination of information represented by the Internet.

 

What does the law say?

As a result of the harmonisation of data protection laws across the EU, the European Court of Justice has jurisdiction to determine issues arising from data protection cases. Courts of the member states of the EU can refer cases to the ECJ for rulings as to the interpretation of the law. One such case – Google Spain SL –v- Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014) [2014] QB 1022 – has become fairly well-known and has been the subject of public debate. It is colloquially known as the Google Spain case. It is the case that first really brought to prominence the notion of a “right to be forgotten”.

Put simply, the case decided that, after a period of time, certain information about a person (although it may have been accurate many years ago, and may remain so) should not continue to be made available to the public in Internet search results because to do so would infringe the data protection rights of the individual concerned. The right was not absolute. It could be outweighed by other considerations. The Court explained:

“It must be pointed out at the outset that….processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous.

In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights… Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”

This principle sharply divides public opinion. Concern has been expressed that the right to be forgotten could be misused and might lead, in effect, to censorship of the information that is available on the Internet. Criminal cases are invariably conducted in public. Information relating to people who are convicted of criminal offences may well end up on the ‘public record’, most likely as a result of newspaper reports of cases that appear in the Courts. Those opposed to the “right to be forgotten” contend that access to this sort of information should not be prevented by restrictions placed on what can appear in the results of Internet search engines.

This is another area of the law in which two human rights come into conflict; the right to be forgotten is a dimension of the right to privacy and it conflicts with the right of freedom of expression (which includes the right to receive as well as to impart information). When disputes like this arise, it is ultimately for the Court to decide where the balance is to be struck in an individual case.

 

What about the UK Courts?

The High Court is soon to decide this issue so far as the UK is concerned.

The Claimants in two cases before the Court (to be heard in February and March 2018) are both individuals (neither is a ‘celebrity’ or politician) who have previously been convicted of criminal offences, but both have now been “rehabilitated” under the Rehabilitation of Offenders Act 1974. One was convicted in the late 90s of conspiracy to account falsely. Over ten years ago, the other was convicted of conspiracy to intercept communications. Both complain in their respective claims that Google is continuing to return, in response to searches of their names, links to information about their respective convictions. Some of the links that are complained about are links to newspaper articles reporting the original criminal proceedings. The Claimants argue that the time has come for them to be entitled to have these entries removed from searches carried out on Google.

 

What is the High Court likely to say on this issue?

We simply don’t know for sure, but most commentators think that earlier EU decisions are likely to be adopted. But, whichever way the case goes, it is likely, ultimately, to end up before the Supreme Court, so it may be a year or so before we have any clarity.

How we can assist

As criminal defence solicitors we are often asked by our clients how long it will take for a conviction to be “spent”.  To discuss any issues raised by this article, please contact us on 01926 886007 or click here.

 

 

 

 

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Is it Lawful to Hit a Child

Laws that criminalise unlawful violence date back to 1861 and are used every day in criminal courts to support prosecutions.

Despite what might appear to be an obvious legal position, the question is often asked as to whether, despite those laws, it is permissible to ‘smack’ a child.

The simple answer is that it is lawful to chastise a child by smacking, although the extent of that provision needs explaining in more detail below.

Perhaps surprising to many is the fact that the UK is only one of two places in the European Union that permits this state of affairs (the other being the Czech Republic).

This week the devolved government in Wales launched a 12-week consultation, with proposals to outlaw all smacking of children.

The minister for children and social care said:

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

While physically punishing children was accepted as normal practice in previous generations, we know that it is increasingly being seen as less acceptable and parents feel less comfortable.

We want parents in Wales to be confident in managing their children’s behaviour without feeling they must resort to physical punishment. If there is any potential risk of harm to a child, then it is our obligation as a government to take action. Legislation was introduced many years ago to stop physical punishment in schools and childcare settings – now is the time to ensure it is no longer acceptable anywhere.”

The move in Wales follows similar developments in Scotland last October, which resulted in the children’s commissioners of Scotland, England, Wales and Northern Ireland calling for a ban on smacking children.

Attitudes to parenting practices have also changed. While physically punishing children was accepted as normal practice in previous generations, research shows parents today are increasingly using positive approaches which are proven to be more effective, while feeling less comfortable about using physical punishment. In 1998, for example, 88% of British adults agreed that “it is sometimes necessary to smack a naughty child” while in 2015 only 24% of parents in Wales supported this statement.

Despite this shift in attitude, at the moment there are no plans to change the law as it applies in England.

What does the law allow?

The law allows an assault on a child provided that it constitutes ‘reasonable punishment’.

Section 58 Children Act 2004 states however that this defence cannot apply to the more serious charges of violence such as assault occasioning actual bodily harm, or above.

What is ‘reasonable punishment’?

The concept of ‘reasonable punishment’ has its origins in Victorian times. The case that established the legally accepted definition was R v Hopley (1860).

In this case, a boy was beaten by a schoolmaster with the permission from the child’s father, which led to the death of the child.

During the trial, the presiding judge, Chief Justice Cockburn, stated that:

“A parent or a schoolmaster, who for this purpose represents the parent and has the parental authority delegated to him, may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.”

This case established in law reasonable punishment as a defence for those parents, carers or other responsible adults – such as teachers – who were charged with the criminal offence of assault on children.

The use of corporal punishment was commonplace in schools until the 1980s. From 1986, however, the UK Parliament increasingly restricted the use of corporal punishment, prohibiting it in all state maintained schools in 1987 and in independent schools in 1999. Its use was ended in children’s homes in 2001, Local Authority foster care in 2002 and in childcare provision in 2007.

The question of whether the punishment is ‘moderate and reasonable’ will be for a court to decide on the facts of any individual case.

It is fair to say, however, that any punishment that results in more than transient or trifling injury (leaves a mark or bruise for example), is likely to fall outside of this defence. It is therefore important that parents find other mechanisms to deal with children who might at times be very challenging.

How We Can Assist

You can contact us concerning any criminal law enquiry, our team of expert lawyers will be able to guide you through any criminal allegation, working with you to achieve the best possible outcome. Call 01926 886007 or contact us here.

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The day Pete Gotch met Jeremy Corbyn

It’s not every day you meet the leader of the Labour Party Jeremy Corbyn on the steps of your local Magistrates Court. What a nice man. His view on Legal Aid and access to justice for all is of course close to our hearts at John Onions Solicitors.  He supported the Bach Commission’s report on Access to Justice, published in September this year, which in short, makes recommendations for general policy changes in relation to legal aid. You can read the full report here.

As legal aid solicitors for the past 20 years, we have seen the effect the decline in legal aid funding has had, not only on practitioners but on those facing the justice system – both in criminal and civil proceedings.

 

If you have any questions or queries relating to criminal proceedings, family or motoring you can go to our website contact page or call us on 01926 886 007

 

 

 

 

 

 

 

 

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A brief look back on 2016.

As this new website goes live we are able to look back on 2016 at a very successful year. We have recruited some excellent new staff including David Hillier who has 30 years of experience behind him in Criminal and Family law.

We have also had an excellent success rate at trial. Motoring cases have taken off and the firm has gained an enviable reputation for private motoring expertise.

Among the biggest cases we handled of the year were:

R v Scott (death by careless driving – see article here on the BBC news website)

R v Merrilees (Murder – see article here in the Metro Newspaper).

Both clients were found not guilty following a jury trial. The team from John Onions dealt with these clients every step of the way from police interview through Magistrates Court and Crown Court. A

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