Acquittals and Enhanced Record Checks

If I’m acquitted will the alleged offence show on a DBS check?

An ordinary DBS (Disclosure and Barring Service) check reveals convictions and cautions. An enhanced check, required for many jobs, may reveal ('non-conviction') information held by the police such as intelligence, arrests, prosecutions and acquittals.

Surely an acquittal shouldn’t be on the check?

This was challenged in Court by “AR”, a qualified teacher, who had been working as a taxi driver when he was accused of rape.

His defence was that there had never been any sexual contact with the complainant, although she had been in his taxi. He was acquitted. When he applied for a job as a lecturer the enhanced check revealed the acquittal and the details of the allegation.

What did the Court say?

AR's appeal was unsuccessful.

The Court said that in certain circumstances such information could be included on enhanced checks and in “AR’s” case it was correct to do so.

Why?

The Court said “in principle, even acquittal by a criminal court following a full trial can be said to imply no more than the charge has not been proved beyond reasonable doubt. In principle, it leaves open the possibility that the allegation was true, and the risks associated with that.”

Who makes the decision?

 In the first instance, the police decide whether the information should be included on an enhanced check (although in practice many matters are ‘filtered’ and removed automatically from consideration).

They can disclose non-conviction information that may identify a potential risk to the vulnerable; the test is based on relevance, truth/substantiation and proportionality.

It is not automatic, therefore, that an acquittal would be disclosed, as the circumstances of the acquittal need to be considered and consideration given as to whether the offender may have committed the alleged offence.

It is vital that if there is any positive evidence that the offender did not commit the offence, for example because the complainant admitted lying, that this is brought to the attention of the police.

 

A decision to include information on an enhanced check can have devastating effects on your livelihood. Such decisions can be objected to, and representations made to the police. If unsuccessful, this can also be appealed to the Information Governance Unit. If you would like to discuss any aspect of this article or your case, please contact me on 07766001774 or via email (contact@crimelawyer.co.uk). 

 

 

Bail

[Please note that this article refers to post-charge bail provision for adults. The law for youths is different]. 

Do I have a right to bail?

The starting point is that you have a “right” to be granted bail (section 4 Bail Act 1976). This right can only be taken away in certain circumstances. These circumstances being that the court has substantial grounds to believe that if you were granted bail you would:

·         Fail to surrender;

·         Commit further offences on bail; or

·         Interfere with witnesses

In rare instances bail can be denied for your own protection/welfare.

What if I am already on bail?

If you are charged with an offence alleged to have been committed whilst on bail, then you do not have this automatic right to bail. In that case you do not have to be granted bail, but you can still be if you persuade the Court that you will not fail to surrender, commit further offences or interfere with witnesses. If you appear in court following a failure to surrender at an earlier hearing you also lose the automatic right to bail.

Does it matter if I am a drug user?

If you have tested positive for class A drugs, and refuse to co-operate with treatment, you may not be granted bail unless the court is satisfied that there is no significant risk of an offence being committed whilst on bail.

Will I have conditions on my bail?

The Court can grant bail unconditionally or they can impose bail conditions if they are satisfied that those conditions are necessary to address any risk that you would fail to surrender, commit further offences or interfere with witnesses.

Any conditions imposed have to be both necessary and proportionate. Examples of conditions are curfew, residence, not to contact named witnesses, not to go to a specific area, or reporting to the police station. You or a person on your behalf could also agree to pay money into the court which would be forfeited if you subsequently failed to attend court.

What if the offence isn’t serious?

You should be granted bail if there is no real likelihood of a prison sentence if you plead guilty or are convicted. As always, there are exceptions to the rule. You may still find yourself in custody if the Court is satisfied there are substantial grounds for believing that you would:

·         Commit an offence while on bail by engaging in conduct that would, or would be likely to cause-

·         physical or mental injury to an associated person; or

·         an associated person to fear physical or mental injury.

·         Commit further offences if the offence was committed whilst on bail;

·         Fail to surrender, if you have previous convictions for this;

·         If you have been arrested for breach of bail for this offence and there is a fear of failure to surrender, further offences or interference with witnesses.

If you are charged with a non-imprisonable offence you can only be denied bail if you have previously failed to surrender and there is a belief you would do so again or following a breach of bail.

Are there any other reasons I could be kept in custody?

You can also be kept in custody for your own protection or if you are already a serving prisoner. If there is insufficient information to decide about bail you can be kept in custody for the purposes of obtaining that information.

The Magistrates do not have the power to grant bail for anyone charged with murder or treason. For an offence of manslaughter, rape or a serious sexual offence where there is a previous conviction for one of these offences you can only be granted bail if there are exceptional reasons to justify it.

 

This is intended as an overview of the law, and does not cover all potential bail issues. To be able to put forward the best argument for bail you should be represented by an experienced solicitor. 

Search Warrants - Update

 R (Brook) v Chief Constable of Lancashire [2018] EWHC 2024 (Admin) (11 July 2018)

An important reminder that search warrant applications must be precise and officers must disclose material facts. 

The facts?

On 11 July 2018, the High Court quashed search warrants, applied for by Lancashire Police and consequently issued by Preston Magistrates' and Crown Court, for searching residential homes and business premises of individuals suspected of bribery offences. In particular, it was alleged that £1 million was being paid for construction contracts with Nationwide Building Society.  

The reason the search warrants were quashed?

In summary, the police had not properly particularised the material they were seeking, and had made an error of fact when making the application.

In relation to the question of particularisation/precision, the Court observed that:

"It cannot be adequate to authorise seizure of all communications, not only between Mr Emms and either of the two Mr Brooks but – as was also encompassed by the wording of the warrant – between Matthew and Martin Brook. That is far too broad given in particular the fact that they are father and son and must have communications about many subjects on a regular, possibly daily basis. Simply to state that all such communications were covered without making any attempt to circumscribe those communications either in terms of their content or in terms of timescale was, in my view, manifestly deficient. It cannot be said that the warrant was sufficiently clear and precise for somebody to whom the warrant was presented to know what they had the right to challenge and what they did not. On the face of the warrant any communication of any kind could be seized but plainly that was not something which could be justified. The same, in my view, goes for the description which referred simply to "financial documentation". That, again, was entirely unlimited both as to the nature of the financial dealings which were intended to be covered and in terms of timescale". 

The judgment reiterates the principles that police officers have an explicit duty to disclose all material facts when making ex parte (without notice) search warrant applications. Material facts are those which might reasonably have led a judge considering the application to refusing to grant the warrant.

Importantly, this duty of disclosure includes information which might undermine the police application(s), and also extends to facts that would have been known had proper inquiries had been made by the police.

 

Should you have any queries relating to this article or your case, please do not hesitate to contact me via telephone (07766001774) or email (contact@crimelawyer.co.uk). 

 

Entrapment

Agent provocateur is French for “inciting agent”, an entrapment situation where a person is enticed, incited or encouraged into committing an offence that he would not have otherwise committed.

How does it relate to criminal law?

The police frequently use undercover police officers in relation to drugs and other offences. For example, an officer becomes familiar with local drug users and suppliers, and evidence for supply-related offending is obtained. 

If the officer asks the suspect for drugs, is he an agent provocateur? - is he an “inciting agent”?

Some people would try to argue he is, and that they wouldn’t have committed the offence unless he had asked them. The difference is between the officer causing the offending and merely providing an opportunity for it to be committed with the officer rather than someone else.

What have the courts said, and Is it a defence?

Entrapment is not a defence per se, but it could be argued that the case should not be brought at all.

This would involve a consideration as to the degree of persuasion and the gravity of the offence. The question of exclusion of evidence may also arise.

In the case of R v Shannon it was said that if there is good reason to question the credibility of the evidence given, then the judge may conclude that the evidence should be excluded.

Two leading cases involved the supply of drugs to an undercover police officer. “L” argued that he had been lured into the supply.

The Court held that it would be acceptable if officers were to provide a person with an unexceptional opportunity to commit a crime and the person then freely took advantage of that opportunity.

The situation would be quite different and would be an abuse of process if officers instigated an offence by offering inducements and luring a person into a course of action he would not normally have followed.

In “G’s” case the actions of the officers, by contrast, were said to go beyond those of undercover agents as they instigated the offence, there was no evidence to suggest that without their intervention it would have been committed.

In a case involving an undercover journalist (Shannon v UK), it was said that an offender was not entrapped when he supplied drugs to the journalist as he had not been placed under any "pressure" to do so.

Do undercover officers have rules to follow?

There is an Undercover Operations Code of Practice issued jointly by all UK police authorities and HM Customs and Excise.

 

If you would like to discuss any aspect of this article or your case, please contact me on 07766001774 or email me (contact@crimelawyer.co.uk). 

New Guide to Commencing Proceedings in the Court of Appeal (Criminal Division)

New guidance has been published for commencing proceedings in the Court of Appeal (Criminal Division). The guidance can be found here

The guides include information on:

  • how to find and contact the court
  • how cases are listed
  • representing your client in the court

They also include details of facilities at the Royal Courts of Justice and a list of criminal appeal forms.

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