Darren Snow recently represented a nurse before the Nursing & Midwifery Council in fitness to practice proceedings concerning potentially career ending allegations of patient abuse, dishonesty and multiple clinical failures at a care home involving several patients, one of whom had died and been the subject of neglect allegations by the family. Darren acted pro bono, instructed by Advocate. The allegations went back several years and until Darren’s involvement the nurse had been a litigant in person with no legal advice or support at all.  The nurse had continued to work with new employers in the interim without any interim order in place. Darren was able to get a substantial amount of highly prejudicial material excluded from the hearing including evidence from an inquest and police investigation – all accepted by the NMC to be inadmissible despite their initial attempts to rely upon it in the proceedings. At the hearing Darren’s submissions led to all charges of patient abuse and dishonesty being dismissed. Limited findings on separate charges were made by the Panel in respect of clinical failures leading to a 1-year caution order being imposed. In feedback to Advocate the nurse said of Darren “I would particularly like to thank Darren Snow, without his legal knowledge I would not have got through it” Darren Snow is ranked in the Legal 500 as a leading junior in professional discipline work. He has a wealth of experience successfully defending nurses and midwives at the NMC and regularly acts for the RCN and other defence organisations. For further information on Libertas’s Professional Disciplinary and Pro Bono work please contact our clerks.

In her first article for the prestigious Prospect Magazine, Dr Felicity Gerry KC writes under the title “It is not radical to want to close prisons”. There are over 80,000 people in prisons and young offender institutions in England and Wales. A huge number are on remand, not convicted of any crime and supposedly presumed innocent. They are the prisoners most likely to commit suicide. Many of those waiting will be found not guilty or will be sentenced to less time than they have served. Thousands will be held in strict confinement for relatively minor offences, even where reasonable alternatives are known to be effective…. You can read the article here https://www.prospectmagazine.co.uk/politics/close-prisons-ministry-of-justice-backlog-police-jail-cell Prospect is Britain’s leading current affairs monthly magazine. It is politically independent, with no party-political affiliation or agenda. It is a not-for-profit organisation, founded in Britain in 1995. Prospect has established itself as a must-read title with key figures in government, journalism, policy making and business. People turn to Prospect for the ideas and trends behind the headlines and for a contrarian view of topics.

The decision in the Dominic Ongwen Appeal was handed down on Thursday 15 December 2022. All of his grounds of appeal were dismissed. However, one judge recognised the importance of the non-punishment principle for former child soldiers from the Amici brief observations submitted by Dr Felicity Gerry KC who attended the appeal hearing and led a group of practitioners and academics in submitting the brief. In paragraph 107 of the Partly Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza referred to the observations of Gerry et al as follows: 107. Gerry et al., drawing upon their expertise in modern slavery law and criminal responsibility, submitted that “‘non-punishment’ of victims of modern slavery/human trafficking includes the non-liability of former child soldiers who commit crimes when they continue to suffer the effects of their victimhood through compromised mental health”.They noted that the Trial Chamber “did not consider or express any legal principles for evaluating the effect of being a child soldier nor the mental health nexus” in the trial or sentencing phases.They discussed “the need to recognise the long-term effects of being a child soldier”.They stressed the importance of applying relevant legal principles to the question of Mr Ongwen’s criminal responsibility in light of the fact that he was “made into a child soldier by the means and purposes of others” and that he “suffered as a consequence”. Non punishment of victims of human trafficking / modern slavery is an emerging norm in criminal law and remains an important issue for prosecutors to consider when seeking to prosecute former child soldiers and other victim perpetrators. You can read the Amici observation here https://www.icc-cpi.int/court-record/icc-02/04-01/15-1929 You can read about the Ongwen appeal here https://www.icc-cpi.int/cases?f%5B0%5D=state_of_%3A132  

As the year begins to draw towards it’s end we would like to thank all customers, clients, partners and contacts for being part of our journey through 2022 and wish you all a fantastic festive season and a happy new year. Our team will be on hand over the festive period as per the times below.  Friday 23rd December 8.30am – 1.30pm 24th – 27th December – Closed Wednesday 28th December – 9am—2pm Thursday 29th December – 9am—2pm Friday 30th December – 9am—2pm 31st December – 2nd January – Closed 3rd  January 2023  – Normal hours resume Once again, many thanks for working with Libertas during 2022 and we very much look forward to working with you in 2023.  

Chaynee Hodgetts has published an article in the Solicitors Journal on the risks of false positives in forensic alcohol testing The article is understood to be the first of its kind for the legal literature, in scrutinising the risk that false positive alcohol metabolite testing results could potentially be caused by hair bleaching and hand sanitiser. Chaynee, one of our newest tenants, has over 10 years’ experience as an academic and Law Lecturer, and is now an Honorary Lecturer in Criminal Law and Medical Law, assisting at both Bangor University and on MSc programmes at QMUL’s Centre for Trauma Sciences (C4TS) at the Blizard Institute. The article explains alcohol metabolite testing (tests for EtG, EtPa and FAEE), and highlights the little-known, but highly relevant, effect of hair bleaching and the risk of false positive results. It also explores a novel and original issue, only just developing in the scientific literature – and, to date, not explored in case precedent – whether alcohol-based hand sanitiser (ABHS) could be leading to false positive errors in forensic alcohol testing in criminal and family cases. The full article is free to access and share here: www.solicitorsjournal.com/sjarticle/hands-face-alcohol-trace-hair-dye-hand-sanitiser-and-forensic-tests/602831

Welcome to the fourth and final edition of The Libertas Lens for the year. In this newsletter, we introduce a new member, provide an update on our recent rankings in the Chambers and Partners and Legal 500 guides, include 4 expert insight articles, update you on the latest news and case updates, and provide links to a upcoming webinar from our expert team and special guest speakers. To view the edition click here To register for Libertas Lens and ensure you never miss out on our news, events and free webinars follow this link or click Join our Newsletter in the footer below.

Leonard Smith KC and Marie Spenwyn instructed by Rahman Ravelli Solicitors appeared for the mother in the murder case concerning the death of Sebastian Kalinowski heard at Leeds Crown Court earlier this year before Mrs Justice Lambert.   The sentencing hearing which took place today was broadcast following recent changes allowing TV cameras into Courts. The case was deemed to be exceptionally serious and a minimum term of 39 years was imposed.   Sky News recording: https://www.youtube.com/watch?v=6hYzO-u2XoQ Link to Judgment: https://www.judiciary.uk/judgments/r-v-latoszewski-kalinowska/ Links to news items: https://www.bbc.co.uk/news/uk-england-leeds-63489229 https://www.bbc.co.uk/news/uk-england-leeds-62009952

This article reviews the recent research report published by the Sentencing Council examining the effectiveness of sentencing with a view to approaches to mitigation. The report concluded that the evidence does not support a conclusion that more severe sentences have a significant deterrent effect on the offender or on offending behaviour generally. Measuring the effectiveness of sentencing is a key part of the role of the Sentencing Council. On the 30th September 2022 a report was published authored by Dr Jay Gormley and Dr Ian Belton entitled “The Effectiveness of Sentencing Options on Reoffending”. The following appears in the key findings section of the report: The evidence does not suggest that using more severe sentences (particularly sentences of immediate imprisonment over other disposals) has significant deterrent effects on the person sentenced or the general population. However, more evidence is needed to assess the deterrent effects of suspended custodial sentences, rather than immediate imprisonment, on those subject to such an order. The report also finds that the evidence demonstrates – in fact ‘strongly suggests’ – that sentences of immediate custody under twelve months are less effective than other types of sentence when focusing on preventing reoffending. The authors state in that context that there is a ‘reasonable body’ of evidence which indicates that use of short sentences can in fact increase reoffending. An understanding of these findings may assist those presenting submissions as to sentence in certain cases. The use of sentencing guidelines when mitigating in circumstances where it is clear what category a case will fall into, either by agreement or by direction from the bench during submissions, can often place a case into the significant bracket where – once an appropriate reduction for plea and for mitigation are taken into account – the question of whether a sentence can properly be suspended is a key consideration for the court. Reference to the guideline on use of suspended sentences and the significant authority of Petherick [2012] EWCA Crim 2214 assists those mitigating in making targeted submissions to seek to persuade the court to an option that does not involve immediate custody. Considering the import of aspects of this report in a measured way, focused as it is on the effectiveness of sentences, could well assist those tasked with inviting the court to avoid a prison sentence. Further, depending on the facts of the case and the circumstances of the offender, the advocate may also draw assistance from some of the specifics within the report – for example when representing females (see part 7). For children, the focus on age and brain maturity (see part 3) are areas that could be drawn together with the overarching principles when sentencing young offenders to highlight pertinent features. The aims of sentencing are enshrined in section 57 of the Sentencing Code for adults (offender aged 18 or over when convicted). Entitled “purposes of sentencing”, s57(2) states that, save in relation to disposals under the Mental Health Act 1983 or mandatory sentences, the court must have regard to: (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences For children – those under 18 – section 58 reiterates that nothing in the code affects the duty of the court to have regard to the welfare of the child and the principle aim of the Youth Justice System: preventing offending or re-offending. For adults one of the aims the court must have regard to is deterrence and reduction in crime – so implicitly reduction in re-offending; for children it is the duty of the court to have regard to preventing re-offending. It is striking that the research does not find support on the current evidence that sentences of immediate custody – as opposed to other alternative disposals, specifically suspended sentence orders or in the case of children intensive rehabilitation orders – have a deterrent effect on the person being sentenced or the ‘general population’. When mitigating in a situation where there is a genuine question for the court as to whether imposing immediate custody in the form of imprisonment, detention in a young offender’s institution or, for those under 18, a detention and training order, an awareness of these findings could be usefully woven into submissions. In combination with a thoughtful pre-sentence report setting out a programme for sentence specifically targeting the prevention further offending acknowledging these findings might assist in what can often be a delicate balancing exercise for the court.   Marie Spenwyn November 2022 Download Article here