theForum is run by the charity Unlock. We do not actively moderate, monitor or edit contributions but we may intervene and take any action as we think necessary. Further details can be found in our terms of use. If you have any concerns over the contents on our site, please either register those concerns using the report-a-post button or email us at forum@unlock.org.uk.


No defence or mitigation offered by my defence solicitor on indecent images charge.


No defence or mitigation offered by my defence solicitor on indecent...

Author
Message
JASB
JASB
Supreme Being
Supreme Being (17K reputation)Supreme Being (17K reputation)Supreme Being (17K reputation)Supreme Being (17K reputation)Supreme Being (17K reputation)Supreme Being (17K reputation)Supreme Being (17K reputation)Supreme Being (17K reputation)Supreme Being (17K reputation)

Group: Awaiting Activation
Posts: 558, Visits: 830
Hi

Since my sentencing I have tried to understand the logic behind the actual sentence given by the Judge and where they gain guidance from.

In brief:
  •  my initial PO pre-sentence report promoted the option of a non-custodial supervisory sentence.
    • My PO's manager did later instruct him to include a custodial sentence option though I was never informed why.
  • the investigating police and CPS supported a non-custodial supervisory sentence.
  • 2 x independent psychological assessments supported a non-custodial supervisory sentence 
The Judge decided to give me 4 years, after a 20% reduction for a early guilty plea - note I accepted guilt on arrest and due to Court process issues I could not make my plea in Court until after 15 months of bail, and it took another 11 months to be sentenced!

The only reason I could obtain for his decision was because I was sentenced on the same date as a major Government report being released on prostitution. Yes my offence was paying for sexual services but no mitigation evidence was provided to the Judge - I didn't go to trial - and the Police did not obtain the mobile phone blackmail evidence supporting my statement.

I do not raise this point to try and dismiss my offence but to highlight no matter what the "guidance books" say, "Political agendas" do have an influence.  



Learn from yesterday, live for today, hope is for tomorrow else what is left if you remove a mans hope.
punter99
punter99
Supreme Being
Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)

Group: Forum Members
Posts: 230, Visits: 1.2K
The sentencing guidelines are there to inform the judge, although the CPS will refer to them, in court, as will the defence, to highlight the bits that they want the judge to focus on. But it is the judge who decides the final sentence, not the CPS. The judge can take into account anything they want, even if not mentioned in the sentencing guidelines. Sometimes the judge will say what they have taken into account, but sometimes they won't, so you don't really know for sure how they worked out the sentence.

xDanx
xDanx
Supreme Being
Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)

Group: Forum Members
Posts: 111, Visits: 2.1K
jcdmcr - 5 Jul 20 7:29 PM
punter99 - 5 Jul 20 11:31 AM
What you have to bear in mind, in these cases, is the totality of the evidence against you. There will be bits of the CPS evidence that are not 100% accurate, and you could challenge those, but it will not necessarily mean you get all the charges dropped, even if you are successful in that challenge. The possession law is really pretty simple. You either had images on your device or you didn't. Saying, for example, that the images are now deleted, won't get you off, because you had images in your possession, at some point in the past, even if they aren't there right now. Equally, if the CPS say the images were downloaded in 2015, when you know they were downloaded in 2017, that doesn't change the fact that the images were on your device, at some point. It's a technicality and it won't stop them charging you.

The solicitor has to weigh all of that up, in deciding how to advise you. If they think, on balance, taking into account all the evidence, that you are going to be found guilty, then they will advise you to plead guilty as early as possible. That's not negligence. Admittedly, they don't always go through the evidence with you, usually because they have seen enough similar cases to know what the end result is going to be. They just give you their opinion of how they think things are going to go and that comes down to one thing. Guilty or not guilty.

“To make” has been widely interpreted by the courts and can include the following:
  • Opening an attachment to an email containing an image (R v Smith [2003] 1 Cr. App. R. 13)
  • Downloading an image from a website onto a computer screen (R v Jayson [2002] 1 Cr. App. R. 13)
  • Storing an image in a directory on a computer (although depending on where that image is stored, this could also be a possession charge under s. 160 CJA 1988) (Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248)
  • Accessing a pornographic website in which indecent images appeared by way of automatic “pop-up” mechanism (R v Harrison [2008] 1 Cr. App. R. 29)
 "" source: https://www.cps.gov.uk/legal-guidance/indecent-and-prohibited-images-children

I believe I included the same link in a previous post of mine and included a link to the sentencing guidelines which can be found here https://www.sentencingcouncil.org.uk/wp-content/uploads/Sexual-offences-definitive-guideline-Web.pdf
Page 76 it states "Distribution includes possession with a view to distributing or sharing images. Production includes the taking or making of any image at source, for instance the original image.Making an image by simple downloading should be treated as possession for the purposes of sentencing." This is the same pdf I was sent by my solicitors and I wish I had spotted this sooner, but here we are.

In this instance CPS are wrong and everything they include in that link that warrants a "making" charge is an absolute joke. Lets keep in mind what the sentencing guidelines say in comparison to the CPS.
In order to view any attachment given by email it must first be "downloaded" to your computer in order to view it. If it was a JPG attachment now days you can just view it in your web browser which could then leave data on your computer for quicker loading times in future. If it was a zip file which had an image inside, you would usually have to "download" the zip file to open it and view the contents.
Viewing a website does not "download" websites or any data to your computer screen, instead data is stored on your hard drive which can be used to access the website data to load the site faster in future.
A pop up can appear at any point while browsing online ( thats why ad blockers were created ) and is ultimately out of the users control. a pop up is usually considered as an event that opens up another instance of your web browser which is technically no different to accessing a normal website. a pop up is its own website which also stores data on your computer so if it was to "pop up" again, it would load faster.
The final point I wish to make is to take a look at those cases they include. They date to 2002 - 2003 which in my opinion should not be used because the understanding of computers back then was extremely poor, and continues to be today.

So the real question is, Do the CPS take over the sentencing guidelines or does the sentencing guidelines take over the CPS?

J J
J J
Supreme Being
Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)

Group: Forum Members
Posts: 133, Visits: 488
punter99 - 5 Jul 20 11:31 AM
What you have to bear in mind, in these cases, is the totality of the evidence against you. There will be bits of the CPS evidence that are not 100% accurate, and you could challenge those, but it will not necessarily mean you get all the charges dropped, even if you are successful in that challenge. The possession law is really pretty simple. You either had images on your device or you didn't. Saying, for example, that the images are now deleted, won't get you off, because you had images in your possession, at some point in the past, even if they aren't there right now. Equally, if the CPS say the images were downloaded in 2015, when you know they were downloaded in 2017, that doesn't change the fact that the images were on your device, at some point. It's a technicality and it won't stop them charging you.

The solicitor has to weigh all of that up, in deciding how to advise you. If they think, on balance, taking into account all the evidence, that you are going to be found guilty, then they will advise you to plead guilty as early as possible. That's not negligence. Admittedly, they don't always go through the evidence with you, usually because they have seen enough similar cases to know what the end result is going to be. They just give you their opinion of how they think things are going to go and that comes down to one thing. Guilty or not guilty.

“To make” has been widely interpreted by the courts and can include the following:
  • Opening an attachment to an email containing an image (R v Smith [2003] 1 Cr. App. R. 13)
  • Downloading an image from a website onto a computer screen (R v Jayson [2002] 1 Cr. App. R. 13)
  • Storing an image in a directory on a computer (although depending on where that image is stored, this could also be a possession charge under s. 160 CJA 1988) (Atkins v DPP; Goodland v DPP [2000] 2 Cr. App. R. 248)
  • Accessing a pornographic website in which indecent images appeared by way of automatic “pop-up” mechanism (R v Harrison [2008] 1 Cr. App. R. 29)
 "" source: https://www.cps.gov.uk/legal-guidance/indecent-and-prohibited-images-children
Was
Was
Supreme Being
Supreme Being (2.1K reputation)Supreme Being (2.1K reputation)Supreme Being (2.1K reputation)Supreme Being (2.1K reputation)Supreme Being (2.1K reputation)Supreme Being (2.1K reputation)Supreme Being (2.1K reputation)Supreme Being (2.1K reputation)Supreme Being (2.1K reputation)

Group: Forum Members
Posts: 118, Visits: 1.2K
I never saw the evidence I pled guilty to. My legal aid was only granted after the case management hearing, so I had to make a plea at the magistrates court "blind".  However, my barrister's advice was that every image would have to be shown to a jury and if there was only one of them they disagreed with, I was guilty. I wasn't prepared to take that risk and have the tariff reduction withdrawn. 

I do wonder what would have happened if I had challenged the police and CPS in court in their factual inaccuracies, but that was not the fault of my solicitor or barrister. They gave me the facts. I made a tough decision. It was my decision and I own it.

It is counter-productive to try to "re-litigate". Far better to get on with improving your life.
punter99
punter99
Supreme Being
Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)

Group: Forum Members
Posts: 230, Visits: 1.2K
xDanx - 5 Jul 20 12:30 PM
punter99 - 5 Jul 20 11:31 AM
What you have to bear in mind, in these cases, is the totality of the evidence against you. There will be bits of the CPS evidence that are not 100% accurate, and you could challenge those, but it will not necessarily mean you get all the charges dropped, even if you are successful in that challenge. The possession law is really pretty simple. You either had images on your device or you didn't. Saying, for example, that the images are now deleted, won't get you off, because you had images in your possession, at some point in the past, even if they aren't there right now. Equally, if the CPS say the images were downloaded in 2015, when you know they were downloaded in 2017, that doesn't change the fact that the images were on your device, at some point. It's a technicality and it won't stop them charging you.

The solicitor has to weigh all of that up, in deciding how to advise you. If they think, on balance, taking into account all the evidence, that you are going to be found guilty, then they will advise you to plead guilty as early as possible. That's not negligence. Admittedly, they don't always go through the evidence with you, usually because they have seen enough similar cases to know what the end result is going to be. They just give you their opinion of how they think things are going to go and that comes down to one thing. Guilty or not guilty.

I believe there was negligence due to the fact that despite repeated requests to review the evidence, I never seen a single piece, never got advice from him. He had a care of duty to follow and he simply never followed it
Came across this link while I was looking online https://www.traceysolicitors.ie/en/knowledge/professional-negligence/

If the codes of conduct or the codes of practice, both the police and solicitors have in place are not followed. Is that technically a breach of contract? is that then not considered negligence?



I can't really comment on the specifics of your case. One thing I do know is that the CPS, very often, deliberately keep from disclosing their evidence to the defence, until the last possible moment. It's not illegal for them to do that. The defence solicitor will keep asking to see it and the CPS will keep stalling them, until the last few days before the case is due to go to court. In extreme cases, the defence only gets to see the full evidence, on the morning of the hearing. They then have to read it all very quickly and make a judgement, on how strong it is, before advising their client to plead guilty or not guilty. This is where the solicitor will use their experience of other cases to decide if it's worth fighting that evidence or not. This is only their opinion, at the end of the day and you, as the client, are free to ignore that opinion, if you want.

I realise hindsight is a wonderful thing and that realistically, most of us don't argue with our solictor and just do what they advise us to do. But that was the moment, to say to the solicitor, that you want more time to study the evidence, in which case they can ask for an adjournment, to give you extra time.

xDanx
xDanx
Supreme Being
Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)

Group: Forum Members
Posts: 111, Visits: 2.1K
punter99 - 5 Jul 20 11:31 AM
What you have to bear in mind, in these cases, is the totality of the evidence against you. There will be bits of the CPS evidence that are not 100% accurate, and you could challenge those, but it will not necessarily mean you get all the charges dropped, even if you are successful in that challenge. The possession law is really pretty simple. You either had images on your device or you didn't. Saying, for example, that the images are now deleted, won't get you off, because you had images in your possession, at some point in the past, even if they aren't there right now. Equally, if the CPS say the images were downloaded in 2015, when you know they were downloaded in 2017, that doesn't change the fact that the images were on your device, at some point. It's a technicality and it won't stop them charging you.

The solicitor has to weigh all of that up, in deciding how to advise you. If they think, on balance, taking into account all the evidence, that you are going to be found guilty, then they will advise you to plead guilty as early as possible. That's not negligence. Admittedly, they don't always go through the evidence with you, usually because they have seen enough similar cases to know what the end result is going to be. They just give you their opinion of how they think things are going to go and that comes down to one thing. Guilty or not guilty.

I believe there was negligence due to the fact that despite repeated requests to review the evidence, I never seen a single piece, never got advice from him. He had a care of duty to follow and he simply never followed it
Came across this link while I was looking online https://www.traceysolicitors.ie/en/knowledge/professional-negligence/

If the codes of conduct or the codes of practice, both the police and solicitors have in place are not followed. Is that technically a breach of contract? is that then not considered negligence?



punter99
punter99
Supreme Being
Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)Supreme Being (5.1K reputation)

Group: Forum Members
Posts: 230, Visits: 1.2K
What you have to bear in mind, in these cases, is the totality of the evidence against you. There will be bits of the CPS evidence that are not 100% accurate, and you could challenge those, but it will not necessarily mean you get all the charges dropped, even if you are successful in that challenge. The possession law is really pretty simple. You either had images on your device or you didn't. Saying, for example, that the images are now deleted, won't get you off, because you had images in your possession, at some point in the past, even if they aren't there right now. Equally, if the CPS say the images were downloaded in 2015, when you know they were downloaded in 2017, that doesn't change the fact that the images were on your device, at some point. It's a technicality and it won't stop them charging you.

The solicitor has to weigh all of that up, in deciding how to advise you. If they think, on balance, taking into account all the evidence, that you are going to be found guilty, then they will advise you to plead guilty as early as possible. That's not negligence. Admittedly, they don't always go through the evidence with you, usually because they have seen enough similar cases to know what the end result is going to be. They just give you their opinion of how they think things are going to go and that comes down to one thing. Guilty or not guilty.

xDanx
xDanx
Supreme Being
Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)Supreme Being (2.2K reputation)

Group: Forum Members
Posts: 111, Visits: 2.1K
jcdmcr - 4 Jul 20 5:05 PM
Our Alfie - 5 Dec 19 3:27 PM
Hi

This may have been covered in earlier posts if so I apologise.

In January 2017 my house was searched and devices taken by police. I was arrested and interviewed about indecent images of children. My lap top was analysed by the police who discovered 13 indecent images of which only 1 ( which was a Cat A) had been deleted and were, according to the police inaccesible.
 
On the advice of my solicitor I entered a guilty plea at the magistrates court because I was told by.my solicitor that as the images were on my PC I was guilty of making images ( three charges of making indecent images of a child). I was advised that if I went to trial and was found guilty my punishment would be more severe, ( custody could not be ruled out)than if I had pleaded guilty and it was very likely the local press would report it.

On the day if sentencing the CPS read out the charges but ommitted to mention that all but 1 image had been deleted and that there was no evidence that I had viewed it.

I genuinely do not recall receiving anyninapropiate images. I used to enter sex chat rooms but never discussed children in an inapropriate manner. The CPS have asserted that I used code to discuss underage ( ridiculous). 


The point I wish to be considered and would welcome comments is should my solicitor have entered in my defence solicitor in mitigation that all but 1 image had been deleted and made inaccessible?









I've just seen this - so i'm going to have to read it, but going off the title my solicitor was exactly the same.

Mine too.

its only now after some research I came to the conclusion that this was in fact negligence

J J
J J
Supreme Being
Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)Supreme Being (2.4K reputation)

Group: Forum Members
Posts: 133, Visits: 488
Our Alfie - 5 Dec 19 3:27 PM
Hi

This may have been covered in earlier posts if so I apologise.

In January 2017 my house was searched and devices taken by police. I was arrested and interviewed about indecent images of children. My lap top was analysed by the police who discovered 13 indecent images of which only 1 ( which was a Cat A) had been deleted and were, according to the police inaccesible.
 
On the advice of my solicitor I entered a guilty plea at the magistrates court because I was told by.my solicitor that as the images were on my PC I was guilty of making images ( three charges of making indecent images of a child). I was advised that if I went to trial and was found guilty my punishment would be more severe, ( custody could not be ruled out)than if I had pleaded guilty and it was very likely the local press would report it.

On the day if sentencing the CPS read out the charges but ommitted to mention that all but 1 image had been deleted and that there was no evidence that I had viewed it.

I genuinely do not recall receiving anyninapropiate images. I used to enter sex chat rooms but never discussed children in an inapropriate manner. The CPS have asserted that I used code to discuss underage ( ridiculous). 


The point I wish to be considered and would welcome comments is should my solicitor have entered in my defence solicitor in mitigation that all but 1 image had been deleted and made inaccessible?









I've just seen this - so i'm going to have to read it, but going off the title my solicitor was exactly the same.
GO


Similar Topics


As a small but national charity, we rely on charitable grants and individual donations to continue running theForum. We do not deliver government services. By being independent, we are able to respond to the needs of the people with convictions. Help us keep theForum going.

Donate Online

Login
Existing Account
Email Address:


Password:


Select a Forum....
























































































































































































theForum


Search