New Sentencing Guidelines for Arson and Criminal Damage Proposed

The Sentencing Council has this week (27 March 2018) published proposed new guidelines covering arson and criminal damage offences. The guidelines, for courts in England and Wales, will help ensure consistent and proportionate sentencing for these offences.

Why are new guidelines being proposed?

The introduction of the guidelines is due to existing sentencing guidance for these offences being very limited. There is some guidance in the Magistrates’ Court Sentencing Guidelines for arson, criminal damage and racially or religiously aggravated criminal damage offences. However, there are no guidelines for the Crown Court and none for criminal damage/arson with intent to endanger life or reckless as to whether life endangered, or for threats to destroy or damage property.

These offences can vary greatly in seriousness. Arson can range from a small fire set in a street litter bin to a carefully planned and sophisticated attack intended to endanger lives or destroy a building. Criminal damage also varies in seriousness and type and can include graffiti, damage to public amenities such as trains and railway stations or throwing stones at passing cars from a motorway bridge.

What Offences Are Covered?

The guidelines cover:
• Arson;
• Criminal damage / arson with intent to endanger life or reckless as to whether life endangered;
• Criminal damage where for the damage has a value more than £5000
• Criminal damage where the damage has a value of less than £5000; and
• Threats to destroy or damage property.

They also cover racially or religiously aggravated criminal damage offences.

The Council decided not to include guidance for the offence of possessing an article with intent to destroy or damage property, as the volumes of this offence are very low, (in 2016 25 offenders were sentenced for this offence), so the Council decided to focus on guidance for the higher volume offences.

Approach to sentencing

The draft guidelines set out the approach to the assessment of harm caused by these offences and other factors that should be considered by courts.

The guidelines acknowledge that harm can involve not only physical injury but long-term psychological effects, particularly in relation to arson, and the draft guidelines ensure that courts consider this in their assessment.

The guidelines also provide fuller guidance than is currently available to assist courts in the sentencing of racially or religiously aggravated criminal damage cases.

The financial impact caused is also an important consideration in the assessment of harm, but the guidelines acknowledge that damage to property can mean more than just financial loss.

Damage may be caused to items that have little financial value but are of great personal value, and may be irreplaceable, which can be very distressing for victims.

The guidelines also ensure that the economic or social impact of offending is included in sentencing considerations. Offences can be committed against public amenities and services and damage to a school, community centre or train station can have a real impact on local communities, while there can also be consequential economic harm caused to neighbouring houses or businesses. A further aggravating factor highlighted is ‘Significant impact on emergency services or resources’ which is included to reflect the additional seriousness of offences when a number of emergency vehicles are required to deal with an incident, meaning that fewer resources are then available to deal with any other incidents in the area.

The guidelines also highlight that the impact of arson or criminal damage to national heritage assets such as listed buildings or historic objects can also destroy unique parts of the country’s heritage and history, and that this should be taken into account in sentencing.

Will sentences be tougher?

The Sentencing Council estimates no more than a negligible impact in relation to sentence type and length, although concedes that this depends on the guidelines being properly implemented.

The Council takes a number of precautions in issuing new guidelines to try to ensure that judges interpret them as intended. Sentencing ranges are agreed on by considering sentencing data in conjunction with Council members’ experience of sentencing. Transcripts of sentencing remarks for arson and criminal damage cases have also been studied to ensure that the guidelines are developed with current sentencing practice in mind. Research with sentencers carried out during the consultation period should also enable issues with implementation to be identified and addressed prior to the publication of the definitive guideline.

Following the release of the guidelines, explanatory material will be provided to read alongside the guidelines; consultees can also feed back their views of the likely effect of the guidelines, and whether this differs from the effects set out in the consultation stage resource assessment. The Council also uses data from the Ministry of Justice to monitor the effects of its guidelines.

When will the guidelines take effect?

It is likely that the new guidelines will take effect in late 2018. However, it should be expected that Judges are likely to look closely at the consultation guidelines prior to any implementation, even though this is poor practice. As a firm, we will, therefore, be particularly alert to their misuse before any final guideline comes in to force.

How we can assist

The sentencing process is subject to ever increasing complexity, but one that is understood intimately by our expert team.

Outrage at ‘back door’ criminal court fees

Justin Rivett, solicitor and Crown court advocate at Sussex firm Warren’s, said: ‘This is one of the most significant changes ever to be made to the sentencing process and it has been brought in by the back door, by way of a statutory instrument, thus avoiding any appropriate scrutiny, debate and challenge.

‘It has received virtually no media attention to date, unlike the recent changes made to civil court fees.

‘The effect of the charges is to impose a very significant additional mandatory financial penalty on defendants, regardless of the seriousness of the offence or the defendant’s financial or personal circumstances.

 

see more  here

 

 

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Why would you say that…

By Matthew Beard

I’ve been doing this job a little while now and I sometimes wonder about people’s decisions.  Every person interviewed by the police, be that after arrest or for a voluntary attendance, has a number of rights, one of those being the right to have free legal representation during your time with the police.  This is a qualified person to look after your legal rights, yet consistently we have people come to us after interview, after they have been charged, having chosen not to have legal representation.

Your legal representation is to advance and protect your legal rights while at the police station.  It is our job to ensure the police act lawfully and treat you fairly in custody.  As an example of this, I recently had a client in custody after making a few mistakes on a drunken night out.  He wasn’t interviewed that night, rightly so due to his state.  However, the next morning he was perfectly sober and ready for interview.  First call, I was told further investigations were required.  Second call, I was told the officers were travelling.  Sometime later when the officers were still giving excuses, I decided enough was enough.  Yes they have 24 hours to interview, but they also have a duty to get you out as soon as possible.  A couple of calls later and suddenly everyone is ready for interview, an hour later, the client is out and on his merry way.  If he hadn’t asked for representation, he would likely still have been stuck in that cell many hours later.

In addition to ensuring your detention is lawful, we receive pre-interview disclosure from the officer, that is, information about why you were arrested or asked to attend a voluntary interview.  This can include CCTV, statements from other parties, forensic results.  In basic terms, what they have on you.  Don’t forget, though police say an interview is to give your story, really it is a chance for them to gain evidence against you.  A recent client came into the office a couple of days after charge having been talked out of asking for a solicitor as it “would take too long”.  When asked to give an account in interview he believed there was no way out and so he fessed up the lot.  It later turned out that all they had was a description of a person vaguely fitting him.  Had he had representation at interview, he wouldn’t be pleading guilty in court right now.

Not only are we there to say when to keep quiet, but we are also there to advise when to talk.  Did you know that self defence can include a pre-emptive strike, or that to be guilty of possession of drugs, you have to have knowledge of their existence?  It is our job to know the law, and to know what defences are available to you.  If you go “no comment” in interview because you don’t want to give them evidence as mentioned above, or even if you give an account, but you fail to mention a legal defence, if you subsequently raise a defence at court, the courts may question the truthfulness of your answer.  They may ask “have you had time to think up this defence since interview?”.  If you don’t know of a defence, you can’t put it forward.

Lastly, you’ve been interviewed, you’ve given your answers.  Now it’s time for bail….or not.  If the police decide not to give you bail, it is my job to argue on your part why you should walk free.

I’m sure you can see the decision not to have legal representation is not one to take lightly and, why, every time I hear of someone who said “no I do not want legal representation”, I wonder, why would you say that…..?

 

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

£7.5 million worth of cannabis seized from yacht

 

We have recently been instructed by a  man who was one of 3 men arrested by the Serious Organised Crime Division of the UK Border Force, when their yacht was boarded in the English Channel 10 miles off Beachy Head. The Yacht that they were on was found to contain 2,500 Kilos of cannabis worth in the region of £7.5 million.

More…..

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

£25m of cocaine hidden in bananas

 

Warren’s are representing a man arrested in connection with the importation of 150 kilos of cocaine worth £25 million hidden inside plastic bananas contained within a shipment of bananas from Colombia.

More…..

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

So you think you don’t need a lawyer?

by Paul Summerbell

There is a legal obligation in proceedings for a Financial Order following divorce, for each person to give to the other, evidence of their financial circumstances. In many cases, this is in the hope of reaching a financial agreement that would avoid Court proceedings or an expensive and lengthy trial and thus reduce the legal costs associated with divorce generally. The most essential element in this financial disclosure is the negotiations that take place to reach any form of settlement. If a settlement is achieved then the terms of any agreement must be incorporated in a clear manner in a Consent Order which must be subsequently approved by the Court.

It all sounds very straight forward so far but recording the terms of settlement in a clear manner, in a Consent Order, is not as easy as you might first think. There are a number of factors that may need to be considered, which includes the input of an experienced Solicitor, pointing out issues to the client which they may not have considered. For example, what if someone loses their job? What about the joint debts? Who has agreed to pay what? Has everything been included? A lesson in how important it is to record everything in the agreement, is exemplified by the case of Hamilton v Hamilton (2013). In this case, on separation, there were two children of the marriage for whom the wife was the primary carer. The main assets were the matrimonial home and the wife’s business, valued at £1.5m. As part of the agreement between husband and wife, the wife agreed to pay to the husband “the following lump sums” consisting of five payments on five different dates amounting to £450,000.00. It was agreed on payment of the first lump sum that the husband would transfer his share of the matrimonial home to the wife and there would subsequently be a clean break between the parties.

The first lump sum was paid by the wife but she then only paid part of the second lump sum. The wife thereafter sought permission to appeal the terms of the Consent Order. The wife lost that appeal but despite this, no further payments were received by the husband. The husband issued enforcement proceedings against the wife. The wife issued proceedings for a variation of the Consent Order. The wife claimed that despite the wording of the Order, it amounted to a “lump sum payable by instalments” and is therefore capable of variation. The husband maintained that the Court had no power to vary a series of separate lump sum payments. In order words, was this situation “a series of separate lump sum payments” or a “lump sum payable by instalments”? The distinction might seem narrow but the fact remains that a Court has no power to vary a series of separate lump sum payments but it does have the power to vary “a lump sum payable by instalments”.

Despite the Consent Order having provided for the payment of a series of separate lump sums, the Judge nevertheless concluded that what led up to the making of the agreement, allowed him to take the view that this was a lump sum by instalments. As a result, the wife was given more time to pay and her application for variation was successful.

Do you still think you don’t need a lawyer?

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.