9KBW Law

Contents


The Law on Hoverboards

The must have Christmas present for 2015 is the self-balancing gyroscopic board or “Hoverboard”.

With brand names like the Swegway Hoverboard, the Dryftr, the Wizboard and Gyroboards these “personal transportation devices” are being promoted by dance groups such as Diversity and are even used by David & Victoria Beckham.

These cool new toys usually cost between £250.00 - £700.00 and have speeds of between 6-15 mph; however many people are using them on the roads and pavements without understanding whether they can legally do so.

The short answer is that these gyroscopic boards are illegal to use on public paths or pavements, highways and roads. The restrictions on Hoverboards also mean that they cannot legally be used in public parks or public car parks. You can still have fun using a Hoverboard indoors or on private land.

What is the problem with riding a Hoverboard on pavements and public paths?

The specific provision which prevents the use of a Hoverboard on the pavement and public paths is section 72 of the Highways Act 1835 which states:-

“If any person shall wilfully ride upon any footpath or causeway by the side of any road made or set apart for the use or accommodation of foot passengers; or shall wilfully lead or drive any horse, ass, sheep, mule, swine, or cattle or carriage of any description, or any truck or sledge, upon any such footpath or causeway; or shall tether any horse, ass, mule, swine, or cattle, on any highway, so as to suffer or permit the tethered animal to be thereon”

A Hoverboard is considered to be something that is either driven or a carriage and therefore deliberately riding it on a footpath or path by a road open to the public is a criminal offence.

The maximum penalty for committing an offence under section 72 of the Highways Act 1835 is currently a fine of £500.00.

What is the problem with riding a Hoverboard on the road?

Self-balancing boards are powered by a motor which means that they are considered to be a motor vehicle if used on the roads. Hoverboards used on the roads are therefore subject to the same road traffic laws as other motor vehicles such as cars, motor bikes and mopeds.

As a motor vehicle a Hoverboard would need to be registered and licenced in accordance with the Vehicle Excise and Registration Act 1994 to be used on the roads but the design of Hoverboards mean that this is not possible. In order to be capable of being registered a Hoverboard would have to comply with the same safety standards as other two wheeled motor vehicles such as motor bikes or mopeds. The types of features that a Hoverboard would need in order to be capable of being registered are a speedometer, signalling lights, licence plates and wing mirrors to name but a few examples.

If a Hoverboard is being used on the road then a person could be criminally liable under section 29 of the Vehicle Excise and Registration Act 1994 (VERA 1994) for using or keeping an unlicensed motor vehicle. The maximum sentence for an offender under section 29 of VERA 1994 is a fine of £1,000.00 (Companies and Sole Traders could be liable for greater fines).

In addition to needing to be registered and licenced the “driver” or “rider” of a Hoverboard would need to be insured to ride the Hoverboard as a two wheeled vehicle on the road.

If you ride a Hoverboard on a public road without valid insurance you would be committing the offence of driving without valid insurance (Section 143 of the Road Traffic Act 1988).

The Police can issue a fixed penalty notice consisting of a fine of £300.00 and 6 penalty points on a drivers licence for anyone driving a motor vehicle (including a Hoverboard) without insurance.

If the Police do not deal with a case of driving without insurance by way of a fixed penalty then a person could end up in the Magistrates’ Court where the maximum sentence for driving a motor vehicle without consent is a fine of £5,000.00 and between 6 to 8 penalty points on a person’s driving licence.

It is worth noting that many driving offences including driving a motor without insurance can be committed on a road or “other public place”; which means that if the Police classify the Hoverboard as a motor vehicle whilst it is being used in a public car park then a person could still be liable for prosecution for driving without insurance and similar driving offences.

If a person riding a Hoverboard on a road does not have an appropriate driving licence then they could be prosecuted for driving not in accordance with a licence which is an offence which carries a fine of up to £1,000.00 and endorsement of between 3-6 penalty points onto a driver’s driving licence.

A person riding a Hoverboard on the road or other public place is capable of committing all of the same driving offences as someone driving a car or motor bike. For example if someone decided to ride a Hoverboard home from the Pub, when they were over the legal limit for alcohol for driving a motor vehicle, then they would be committing the offence of Drink Driving. If you are convicted of Drink Driving then this could result in a sentence of up to 6 months imprisonment and or a fine of £5,000.00 as well as disqualification from driving.

Other offences capable of being committed on a Hoverboard used on a road or other public place include dangerous driving, careless driving and failing to stop after an accident.

In summary if you ride a Hoverboard on the road or in a public car park you could be liable to hefty fines and in doing so you could be putting your driving licence at risk.

Self-balancing gyroscopic boards are a lot of fun but if you do not use them within the law you could find yourself in real difficulty very quickly.

Liam Gregory

Chambers of S Azhar & J Mole

9 King's Bench Walk


WHY YOUR FASHIONABLE HANDBAG MIGHT BE ILLEGAL

The international fashion brand Alexander McQueen has become a house hold name for daring and creative designs such as the Knuckle Duster clutch; however following a recent legal case carrying one of these desirable fashion items in public could result in arrest and prosecution for possessing an offensive weapon.

An Alexander McQueen Knuckle Duster Clutch Handbag would usually cost between £600.00 and £3,000.00 although there are cheap imitations available for £20.00 - £40.00.

Alexander McQueen also sells knuckledusters as jewellery; these jewellery Knuckle Dusters are for all intents and purposes identical to the Knuckledustersattached to their clutches and handbags.

When did fashion become a crime?

Earlier this year Mr Christof was arrested and prosecuted for wearing a belt buckle in the form of a knuckle duster.

The Prosecution case was that the “knuckleduster” had been made for the purpose of causing injury and was therefore an offensive weapon even though it was being used as a Belt Buckle.

Mr Christof argued, at the Magistrates’ Court where the case was first heard, that a “knuckleduster” used as a belt was merely a “fashion item” and therefore could not be considered to be a weapon.

The District Judge who heard the case at the Magistrates’ Court decided in favour of Mr Christof and found as fact that as the knuckleduster was being used as a belt buckle it was not an offensive weapon.

The Crown Prosecution Service appealed the decision of the District Judge to the High Court where the case was considered by Lord Justice Beaston and Mr Justice Mitting. The following comments were made by the High Court Judges in their ruling of the 22nd of October 2015:-

“the route by which the judge had arrived at his conclusion was not legally acceptable. He had effectively based his decision on the respondent's intention in wearing the belt, which did not address the Crown's case that, however you looked at the item, it was a knuckleduster made for the purpose of causing injury, despite the fact that it also served another purpose as a belt buckle”

AND

“Whether the item was an offensive weapon was potentially of some importance: if it was a fashion item that was widely worn, then the wearers needed to know that they were potentially at risk of prosecution for an offence which carried a mandatory minimum sentence of six months' imprisonment under the Prevention of Crime Act 1953 s.1(1)”

The point that the High Court Judges are making is that although a knuckleduster may have a dual function, such as a belt buckle, this does not prevent it from being classified as an offensive weapon.

What is an offensive weapon?

Possessing an Offensive Weapon in Public without a reasonable excuse is a criminal offence under Section 1 of the Prevention of Crime Act 1953.

Offensive weapons fall into three categories; those which have been manufactured to cause injury, those that had been adapted to cause injury, and those that were intended by the person having them with him to be used to cause injury.

Section 141 of the Criminal Justice Act 1988 makes it a criminal offence to manufacture an offensive weapon. Section 1 of the Schedule to The Criminal Justice Act 1988 (Offensive Weapons) Order 1988 states:-

“Section 141 of the Criminal Justice Act 1988 (offensive weapons) shall apply to the following descriptions of weapons, other than weapons of those descriptions which are antiques for the purposes of this Schedule:”

The first item on the Schedule of Offensive Weapons at Section 1(a) is:-

“a knuckleduster, that is, a band of metal or other hard material worn on one or more fingers, and designed to cause injury, and any weapon incorporating a knuckleduster;”

Knuckledusters are therefore classified as offensive weapons per se because they are considered to be “manufactured” Offensive Weapons.

What is the penalty for having an offensive weapon?

The maximum sentence that can be imposed for possessing an offensive weapon in a public place is a 4 year sentence of imprisonment and or a fine.

Is there any defence?

Lord Justice Beaston and Mr Justice Mitting also stated in their ruling on the 22nd of October 2015 regarding the knuckle duster belt buckle:-

“The item in question appeared to have unusual features for a knuckleduster, and therefore it was at least possible that it had not been made or designed for the purpose of causing injury, even though it could have been put to that use. If that was so then, notwithstanding that judicial notice had to be taken of the fact that knuckledusters were considered to be offensive weapons by both the relevant legislation and case law, it had been open to the judge to conclude that the item was not an offensive weapon per se”

In other words if your designer handbag incorporates a knuckleduster you could be prosecuted for having an offensive weapon and then it will be for you to show to satisfy a Jury or Magistrates’ Court that despite the knuckleduster being a weapon it was not manufactured to be a weapon.

It may be possible for someone with a genuine Alexander McQueen Knuckle Duster Handbag to argue that the knuckleduster was made for the bag as a handle and not made as a weapon; however cheaper copies which attach a knuckleduster to a handbag would still be classed as offensive weapons because the knuckleduster would be considered to be manufactured as a weapon even though it was now being put to another use.

A person arrested in possession of a Knuckle Duster Handbag could also try to argue that they have a reasonable excuse for having the bag in their possession.

It will be interesting to see if any prosecutions arise out of this ruling by Lord Justice Beaston and Mr Justice Mitting.

Liam Gregory

Chambers of S Azhar & J Mole

9 King's Bench Walk


THE LAW ON DRONES

PART ONE (USING A DRONE WITHIN THE LAW)

Unmanned aircraft or “drones” are increasingly popular as they become less expensive and easier to fly. The development of inexpensive light weight digital cameras has meant that drones are now being used to conduct aerial photography more cheaply than traditional methods.

The relative small size of drones compared to helicopters and planes also means that they can be flown at lower speeds and closer to the ground which in turn allows for a wide variety of new practical applications.

This article is about using drones within the law as well as the potential legal consequences for failing to do so.

Civil Aviation Authority

The Civil Aviation Authority (CAA) is the statutory public corporation which oversees and regulates all aspects of civil aviation in the United Kingdom and was established under the terms of the Civil Aviation Act 1971. The current main Act of Parliament regulating aviation in the UK is the Civil Aviation Act 1982.

The regulations governing the use of drones are set out in The Air Navigation Order 2009. If you use a drone in the United Kingdom then you have to abide by the regulations in The Air Navigation Order 2009.

Failure to comply with the regulations for drones set out in The Air Navigation Order 2009 is punishable by a fine of up to £2,500 (Section 241(6) of The Air Navigation Order 2009).

Which Regulations Apply to My Drone?

Which regulations apply to a drone depend on the following:-

• Whether the drone is being used to take aerial photography

• How much the drone weighs

• Whether the drone is being used for work

If a drone is not being used to take photographs or video then it is governed by Article 166 of The Air Navigation Order 2009.

If a drone is being used to take photographs or video then it is governed by Article 166 and Article 167 of The Air Navigation Order 2009.

If you want to fly a drone for work you may only do so in accordance with permission granted by the CAA (Article 166(5) of The Air Navigation Order 2009).

Where can a Drone be Flown?

Different regulations about where a drone can be flown apply depending on the weight of the drone. If a drone is less than 7kg then it can fly in any air space.

Drones weighing more than 7kg are restricted on where they can fly. The restrictions on where a drone weighing over 7kg can be flown are outside of the scope of this article and we would advise checking with the CAA before undertaking any flight.

Duty to Ensure Flight can be Safely Made

Article 166(2) of The Air Navigation Order 2009 states

“The person in charge of a small unmanned aircraft may only fly the aircraft if reasonably satisfied that the flight can be safely made”

In other words if you can think that flying your drone in a particular way would not be safe then do not fly the drone at all or fly the drone in a manner which would be safe.

Keeping the Drone in Sight

Article 166(3) of The Air Navigation Order 2009 states:-

“The person in charge of a small unmanned aircraft must maintain direct, unaided visual contact with the aircraft sufficient to monitor its flight path in relation other aircraft, person, vehicles and structures”

In other words you need to see your drone at all times whilst you are flying your drone; if you lose sight of your drone then you are in breach of Article 166(3) and liable to a fine of up to £2,500.00

Some drones allow you to pilot them by transmitting video footage from the drone directly to a video screen; however the law still requires you to keep the drone in your sight when you are operating it.

Dropping Items from a Drone

Article 166(1) of The Air Navigation Order 2009 states:-

“A person must not cause or permit any article or animal (whether or not attached to a parachute) to be dropped from a small unmanned aircraft so as to endanger persons or property.”

In other words if you are using a drone to carry something you must be careful that when the package is delivered (dropped) it does not hurt people or property.

Using a drone for filming or photography

According to Article 167(1) of The Air Navigation Order 2009 a person who is in charge of a drone to be used for filming or photography must not fly the drone in the following circumstances:-

a. over or within 150 metres of any congested area;

b. over or within 150 metres of an organised open-air assembly of more than 1,000 persons;

c. within 50 metres of any vessel, vehicle or structure which is not under the control of the person in charge of the aircraft; or

d. within 50 metres of any person (the only exception to this is the operator themselves).

In addition to the restrictions imposed by Article 167(1) of The Air Navigation Order 2009 a person who is in charge of a drone to be used for filming or photography must not allow the drone to take off or land within 30 metres of a person (the only exception to this is the operator themselves).

If you want to fly a drone outside of the regulations outlined in Article 167 of The Air Navigation Order 2009 you MUST obtain permission from the CAA before doing so.

Summary

The regulations established for the use of drones are designed to ensure that they are used safely. If drones are not used safely and within the law then a person operating a drone could be prosecuted for criminal offences in addition to the penalties which can be imposed for breaching an Article of The Air Navigation Order 2009.

PART TWO of this Article will deal with Criminal Offences which can be committed by people using drones improp

Liam Gregory

Chambers of S Azhar & J Mole

9 King's Bench Walk

 

THE LAW ON DRONES 
PART TWO (DRONES AND CRIMINAL OFFENCES) 

Part Two of this article on the law on drones deals with the criminal liability of an operator of a drone for causing damage or injury as well as criminal liability for other offences which can be committed using drones. 
Causing Harm to People and Property 
The law relating to criminal damage and injury makes it a criminal offence to cause damage or injury deliberately or recklessly.   
If a drone is deliberately flown into a structure or a person then the operator of the drone would be criminally liable for any damage or injury caused.   
If a drone collides with a structure or a person then the operator of the drone maybe criminally liable for any damage or injury caused.   
The legal test for criminal responsibility for causing inadvertent damage or injury is whether the operator was reckless. 
Using a Drone Recklessly 
The law does not generally criminalise people for having an accident or making a stupid mistake; however the law does criminalise people when bad things happen as a result irresponsible or dangerous behaviour even if the consequences of that behaviour were unintended.  The legal term for acting in a dangerous or irresponsible manner is acting “recklessly”. 
There is no fixed set of rules for determining whether someone has acted recklessly; instead the Courts and the Police must consider whether someone has acted recklessly on a case by case basis. 
If damage or injury results as a consequence of breaching The Air Navigation Order 2009 then the Courts and the Police are more likely to consider that the operator of a drone has acted recklessly. 
The key questions raised by The Air Navigation Order 2009 for the purposes of assessing recklessness are:- 
Article 166(2):- Could the drone flight be safely made? 
Article 166(3):- Could the operator see the drone at all times? 
Article 166(1):- Was the injury or damage caused by something falling or dropping off the drone? 
The following additional points apply to drones with cameras:- 
Article 167(1)(d):- The drone should not be flown within 50 metres of any vessel, vehicle or structure not under the control of the operator. 
Article 167(1)(e):- A drone should not be operated within 50 metres of any person other than the operator they (except when taking off or landing in which case the distance is reduced to 30 metres) 
If a drone equipped with a camera causes injury or damage then the operator may quickly be found to have acted recklessly because the operator, if they had been properly complying with Article 167(1) of The Air Navigation Order 2009, should have kept their drone at least 50 metres away from any person or property. 
Criminal Liability for Causing Damage to Property 
If any damage caused by a drone colliding with someone else’s property intentionally or recklessly then the operator is liable on conviction, if the value of the damage is less than £5,000.00, to a sentence of up to 3 Months imprisonment and/or a fine of up to £2,500.00.   
If the damage caused is £5,000 or more than the maximum sentence becomes 10 years imprisonment and/or a fine of up to £5,000. 
Criminal Liability for Personal Injury 
Once criminal liability for causing injury has been established, either because the operator was shown to have acted intentionally or recklessly, then a drone operator would be responsible for the level of injury caused. 
A recent example of injury caused by a drone, reported by the BBC on the 26th of November 2015, was where an 18 month old boy lost an eye to the propeller of a drone.   
Causing an injury which resulted in the loss of an eye would usually be considered to be causing “Grievous Bodily Harm”.  Causing “Grievous Bodily Harm” is an offence contrary to Section 20 of the Offences against the Person Act 1861. 
The maximum sentence for causing “Grievous Bodily Harm” contrary to Section 20 of the Offences against the Person Act 1861 is 5 years imprisonment and/or a fine of £5,000.00.   
If the operator of a drone deliberately flew a drone into someone intending to cause Grievous Bodily Harm then they could be prosecuted for a more serious offence under Section 18 of the Offences against the Person Act 1861 which carries a maximum sentence of life imprisonment and/or a fine of £5,000.00. 
Even where no injury to a person results from collision with a drone an operator could be liable for prosecution for the offence of battery under section 39 of the Criminal Justice Act 1988. 
Using drones in an unsafe manner and thereby causing injury to people or damage to property are probably the most common offences that will be committed using drones; however criminal liability for the misuse of drones can extend to how they are used when they are used safely. 
Harassment 
Section 1(1) of the Protection from Harassment Act 1997 prohibits a person from pursuing a course of conduct which amounts to the harassment of someone else and which that person knows or ought to know amounts to harassment. 
Examples of conduct which might be considered to cause harassment are:- 
Flying a drone into a neighbour’s garden or over their home. 
Using a drone to video or photograph a neighbour and their property without their permission. 
Using a drone to follow someone remotely in order to monitor where they are going and who they are meeting with. 
Repeatedly flying a drone close to a person in a manner which obviously causes them distress or anxiety. 
A person found guilty of harassment contrary to Section 2 of the Protection from Harassment Act 1997 is guilty of an offence which carries a maximum sentence of 6 Months imprisonment and/or a fine of £5,000.   
A person who is found guilty of an offence of harassment could be made subject to a restraining order prohibiting them from engaging in certain types of behaviour in the future. 
Voyeurism 
Drones with cameras can be used to record video footage or take photographs from new and unique perspectives.  Sadly some people have already started to take advantage of the incredible flexibility of drones to make films which have invaded other people’s personal privacy. 
One recent example is of a woman who was covertly filmed by a drone whilst she was sun bathing topless in her own garden. 
If someone uses a drone to film or photograph another person whilst they are doing a private act, such as sun bathing topless, then the operator of the drone could be committing the offence of Voyeurism which is an offence under Section 67 of the Sexual Offences Act 2003 punishable by up to 2 years in prison and/or a fine of £5,000. 
Bringing Prohibited Articles into Prison 
On the 9th of November 2015 BBC news reported that a drone carrying drugs was found in the grounds of HMP Manchester.   
According to the Ministry of Justice nine attempts to bring prohibited articles into prison using a drone were identified in the first half of 2015. 
Section 40A of the Prison Act 1952 classifies which items are prohibited from being brought into a prison.  If an authorised item brought into prison is a “List A” item then the maximum penalty is 10 years imprisonment, bringing a “List B” item into prison carries a maximum sentence of 2 years imprisonment. 
List A Articles are:- 
a controlled drug (as defined for the purposes of the Misuse of Drugs Act 1971); 
an explosive; 
any firearm or ammunition (as defined in section 57 of the Firearms Act 1968); 
any other offensive weapon (as defined in section 1(9) of the Police and Criminal Evidence Act 1984). 
List B Articles are:- 
alcohol (as defined for the purposes of the Licensing Act 2003) 
a mobile telephone; 
a camera; 
a sound-recording device 
A camera equipped drone is a “List B Article” and therefore flying such a drone over a prison would be considered to be a criminal offence under the Prison Act 1952 in addition to any other “cargo” being carried. 
Photography or recording “inside” of a prison is a specific criminal offence under Section 40D of the Prison Act 1952.  An offence under section 40D of the Prison Act 1952 carries a maximum sentence of 2 years imprisonment. 
The practical advice to any drone operators is to avoid filming or flying near to prisons. 
Going Equipped to Steal 
Drones have the potential to be used by a burglar to explore potential properties to be burgled in order to identify weak spots or security features.  In May of 2015 Suffolk Constabulary confirmed that they had received at least one report of a drone being used by burglars to “case” properties.   
If the use of drones by burglars increases then there is a risk that Police Officers may begin to challenge people using drones about why they have a drone in their possession at all. 
Section 25 of the Theft Act 1968 makes it an offence for a person not at his place of abode to have with him any article for use in the course of or in connection with any burglary or theft.   
The conduct criminalised by section 25 of the Theft is going equipped to steal and tends to be used by the Police to arrest people in possession of “tools” under suspicious circumstances. 
There is no list of specific items which are considered to be articles for use in the course of or in connection with any burglary or theft so many different articles have the potential of being considered to be an article for use in the course of or in connection with a burglary or theft. 
A pair of gloves has the potential to be an article for use in the course of or in connection with a burglary or theft as gloves are often warn by thieves to prevent fingerprints being left at the scene of a crime.  Screwdrivers, Torches, Fishing Poles and Bolt Croppers have all, at one time or another, been considered as articles for use in the course of or in connection with theft. 
The effect of Section 25 of the Theft Act 1968 is that if the Police form the view that a drone is intended to be used in connection with a theft or burglary then they have the power to arrest the drone operator and if found guilty of this offence the drone operator could face up to 3 years in prison and/or a fine of £5,000. 
Conclusion 
The development of drone technology is incredibly exciting; however the misuse of a drone either deliberately or through reckless flying can result in criminal prosecution so drones need to be used responsibly and with care.

 

TEENAGERS AND THE LAW ON SEXTING

Sexting is the sending and receiving of sexually explicit messages.  The popularity of sexting apps such as Tinder, Grindr and Snapchat suggest that sexting is now fairly widespread in the UK.

Sexting between consenting adults is legal; however Teenagers who engage in sexting could be at risk of committing a series of criminal offences.

The House of Commons All Party Parliamentary Group for Children published a report on the 29th of November 2015 in which concern was expressed that children are being criminalised “simply for exhibiting behaviours associated with growing up or ‘experimental’ behaviour, such as sexting”.

One of the issues raised by The All Party Parliamentary Group for Children was the long term consequences to children caused by the way in which “low-level crime behaviour” such as texting is recorded and subsequently disclosed to other agencies.

This article considers what types of criminal offences can be committed by young people sexting as well as the potential legal issues that can arise if someone gets caught.

 

SEXTING OFFENCES

Sexting:- The Sexy Selfie

Almost every new mobile phone has a camera which can be used to take pictures or video; once a picture or video has been taken it can be sent to someone else almost instantly.  

It is a criminal offence to make or distribute an indecent image of a “Child” (Section 1(1) and 1(2) of the Protection of Children Act 1978).  

For the purposes of the Protection of Children Act 1978 a “Child” is considered to be anyone less than 18 years of age (Section 45 of the Sexual Offences Act 2003).  An indecent image of a “Child” can include a photograph of someone who is “provocatively posed”; in other words an image does not have to include nudity for it to be an indecent image of a child.

If, for example, a 17 year old takes a “selfie” in their underwear and sends it to their boyfriend or girlfriend then they may have made and distributed an indecent image of a “Child”.  

 

Sexting:- Keeping the Picture

If someone receives a sexually explicit “selfie” from a person under 18 years of age and does not delete the image immediately then they could be considered to be in possession of an indecent image of a “Child”.

 

Sexting:- Sharing Pornography

Under Section 12 of the Sexual Offences Act it is an offence to show someone under the age of 16 an image of a third person engaging in sexual activity which means that two 15 year old teenagers sharing pornographic videos would be committing a criminal offence. 

 

Sexting:- Sexually Explicit Texts

Inciting someone under the age of 16 to engage in sexual activity is a criminal offence under Section 10 of the Sexual Offences Act 2003 and this offence can even be committed by someone who is under the age of 16 themselves (Section 13 of the Sexual Offences Act 2003).

Section 10 of the Sexual Offences Act 2003 essentially means that sexually explicit messages sent from one teenager to another could be interpreted under the law as inciting someone to engage in sexual activity and therefore an offence.

 

Sexting:- Encouraging Someone to Take an Explicit Sexual Image

By virtue of Section 48 of the Sexual Offences Act 2003 a person commits an offence if they intentionally cause or incite someone under 18 to be involved in pornography.  

For the purpose of section 48 of the Sexual Offences Act 2003 a person is involved in pornography “if an indecent image of that person is recorded” (Section 51 of the Sexual Offences Act 2003).

In plain language this means it can be considered a criminal offence to ask someone under the age of 18 to take a Sexually Explicit Selfie.

 

Sexting: Unwanted Messages

Sending indecent or grossly offensive messages via text or email can be considered to be an offence under Section 1 of the Malicious Communications Act 1988.

If someone repeatedly sends another person unwanted text messages (the messages do not necessarily have to be sexts) then this could be treated by the Police as an offence of Harassment under the Protection of Harassment Act 1997.

 

Sexting between Adults and Teenagers

Anyone over 18 who engages in sexting with someone under 18 could be guilty of most of the sexting offences considered in this article depending of course on the nature and content of the Sexts.

The recent publicity surrounding a Minister of Parliament sexting a 17 year old girl and the prosecution of Footballer Adam Johnson for the sexual grooming of a 15 year old girl has highlighted the importance of adults understanding the law on sexting.

 

INVESTIGATIONS BY SCHOOLS & POLICE

Investigations by Schools & Police:- Evidence

The nature of “Sexting” is that it mainly takes place through the use of a computer or a mobile phone.  A prosecutor must be satisfied that there is “sufficient evidence to provide a realistic prospect of conviction” before any prosecution takes place.  

If the Crown Prosecution Service and or Police cannot prove that “sexting” has taken place then they should not prosecute for any sexting offence.

One of the first places that the Police or School staff will look for evidence of sexting is on a computer or mobile phone.

Section 2(2) of the Education Act 2011 amends the Education Act 1996 to provide the power to staff at schools to use reasonable force to search pupils and seize from a pupil any item “that the member of staff reasonably suspects has been or is likely to be used to commit an offence”.

Under Section 550ZC(6E) of the amended Education Act 1996 a teacher who seizes an electronic device, such as a mobile phone, as a result of a search “may examine any data or files on the device, if the person thinks there is good reason to do so”.

The Police have powers of stop and search under the Police and Criminal Evidence Act 1984; however a Police Officer must have reasonable grounds for stop and searching someone and the nature of sexting means that it would be difficult for a Police Officer to justify that they had reasonable grounds for believing a “Sexting” offence was or had been committed in order to justify the search.

 

Investigations by Schools & Police:- PIN Codes & Passwords

Most phones or computers are password protected which means that the immediate problem for a Police Officer or member of School Staff that seizes such an electronic device is how to unlock the phone or computer in order to examine the data or files on the device.

Head Teachers at a School can under Section 89(1) of the Education and Inspections Act 2006 “determine measures” with a view to regulating the conduct of pupils and encouraging good behaviour; in other words school disciplinary procedures could be used to force the disclosure of a PIN code for a seized phone.  Failure to comply with school disciplinary procedures is not a criminal offence.

If the Police become involved in a sexting case they could use powers under Section 49 of the Regulation of Investigatory Powers Act 2000 to require disclosure of a PIN code or password.  A failure to comply with a Notice under Section 49 of the Regulation of Investigatory Powers Act 2000 is punishable by up to 5 years imprisonment in respect of a “child indecency case” (Section 53(5A(a)) of the Regulation of Investigatory Powers Act 2000).  

Section 49 of the Regulation of Investigatory Powers Act 2000 is a complex area of law and many Police Officers do not understand how to give a proper Notice of the requirement to disclose a PIN code or Password.  If a Police Officer requests a PIN code or password legal advice from a properly qualified criminal lawyer should be sought on whether it would be a criminal offence not to disclose the PIN code or password.

 

Common Sense and the Law

If the Police have obtained sufficient evidence for a prosecution to take place a decision must then be made as to whether it is in the public interest to prosecute.

The Crown Prosecution Service guidance on prosecuting cases involving communications sent via Social Media states:-

“The age and maturity of suspects should be given significant weight, particularly if they are under the age of 18. Children may not appreciate the potential harm and seriousness of their communications and a prosecution is rarely likely to be in the public interest.”

Although the Crown Prosecution Service have the discretion on whether to prosecute to prosecute cases of “sexting” involving young people that discretion is not always exercised in favour of the child offender.  

Anyone who is arrested or investigated for a “sexting” offence should seek advice from an appropriately qualified lawyer because properly considered representations at an early stage may prevent a prosecution happening.

One of the issues considered by the House of Commons All Party Parliamentary Group for Children’s report of the 29th of November 2015 was that the Crown Prosecution Service and Police have no consistent approach to dealing with “sexting offences” across the country which creates a Post Code lottery of how young people are dealt with.

 

Consequences of Sexting:- Criminal Convictions, Youth Cautions & Cautions

If the Police become involved in a sexting offence case then the perpetrator may be dealt with by a Youth Caution (if they are under 18), a Caution (if they are an adult) or prosecuted at the Youth Court (if they are under 18), Magistrates’ Court (if they are 18 or over) or Crown Court (in the most serious cases).

All of the offences that could be committed through sexting are punishable by sentences of imprisonment; however given the view of law makers, police officers and head teachers that sexting is “low-level crime behaviour” (The House of Commons All Party Parliamentary Group for Children report of the 29th of November 2015) most if not all offences should be dealt with by a non-custodial sentence.

 

Consequences of Sexting:- Disclosure to other Agencies or Employers

One of the biggest dangers for someone under the age of 18 who becomes subject to a criminal investigation in to “sexting” offences is that the existence of the investigation could be disclosed to future employers and other government agencies even if no criminal prosecution results.

 

Consequences of Sexting:- Sex Offenders Register

A person convicted or cautioned of a sexual offence can be made subject to the reporting requirements by virtue of Section 80 of the Sexual Offences Act 2003; the reporting requirements are often referred to as the “Sex Offenders Register”.

The sexting offences in this article, if committed by someone under 18, generally do not result in the person committing the offence being made subject to the sex offenders register unless they were sentenced to a term of imprisonment of 12 months or more.

Police Officers dealing with sexual offences do not always understand the law regarding whether someone is subject to reporting requirements of the sex offenders register and there have been instances where they have told people that they are subject to the sex offenders register when this is not in fact the case.  

If someone is told by a Police Officer that they will be subject to the sex offender reporting requirements legal advice should be sought from an appropriately qualified lawyer to check if this is correct before signing the sex offenders register.

 

All Party Parliamentary Group for Children

In the House of Commons All Party Parliamentary Group for Children report published on the 29th of November 2015 they stated:-

“The APPGC recommends that the Home Office review their Counting Rules and develop a new outcome, which allows police forces to record low-level crime-related behaviour in a way that would allow for the child’s behaviour to be addressed by a welfare agency but without the incident forming part of a young person’s criminal record or being disclosed within an enhanced Disclosure and Barring Service check. This could be a new recording category of ‘referral for other agency support and intervention”

Until there is a formal change in the law children are at risk of being, perhaps unnecessarily, criminalised for “’experimental’ behaviour, such as sexting”.

 

Conclusion

The purpose of this article is to help raise awareness of how and why, for teenagers, sexting may be a criminal offence and to encourage people who come under investigation to seek legal advice.

This article has not considered possible defences or even all of the penalties for sexting offences which is another reason why legal advice should be sought if someone comes under investigation.

 

THE LAW ON DISCLOSING PREVIOUS CONVICTIONS 


One of the consequences of a criminal conviction or accepting a caution for committing a criminal offence is that you may have to disclose this to an employer or as part of a job interview. 
On the 22nd of January 2016 the High Court ruled that the current law regarding the disclosure of criminal convictions and cautions was incompatible with the European Convention on Human Rights. 
The purpose of this article is to explain firstly how the law on disclosing criminal convictions and cautions works and secondly why the current law was criticised by the High Court. 


Disclosing Criminal Convictions 
Employers may ask if an employee has any previous convictions or cautions.  If a person lies about not having convictions or cautions then they can be dismissed from their employment and potentially prosecuted for committing a criminal offence. 
Certain regulatory bodies such as the Bar Standards Board, General Medical Council, Financial Conduct Authority and Nursing and Midwifery Council may also be entitled to ask if someone has a conviction or caution for a criminal offence. 
Prosecutions for failing to disclose a conviction or caution to an employer or regulatory body are rare but are usually made under section 3 of the Fraud Act 2006 which makes it a criminal offence to fail to disclose information, when required to do so, for personal financial gain.   
The maximum sentence for committing an offence under section 3 of the Fraud Act 2006 is a sentence of up to 10 years imprisonment. 
Having to disclose to a perspective employer that you have a conviction or a caution makes it harder to find a job.   
Professional regulators may prevent someone from practicing in a regulated area if the regulator is aware that someone has a previous conviction or caution. 


Rehabilitation of Offenders 
The Rehabilitation of Offenders Act 1974 (“the 1974 Act”) was introduced as a mechanism to assist former offenders in finding employment by protecting them from having to disclose previous convictions and cautions. 
The 1974 Act makes it possible, depending on the offence and type of sentence imposed, for convictions and cautions to become “spent” after a prescribed period of time. 
Section 4(1) of the 1974 Act states in respect of spent convictions:- 
“a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction” 
Section 4(2) of the 1974 Act states:- 
“where a question seeking information with respect to a person’s previous convictions, offences, conduct or circumstances is put to him or to any other person otherwise than in proceedings before a judicial authority— 
the question shall be treated as not relating to spent convictions or to any circumstances ancillary to spent convictions, and the answer thereto may be framed accordingly; and 
the person questioned shall not be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose a spent conviction or any circumstances ancillary to a spent conviction in his answer to the question.” 
In plain language the effect of the 1974 Act is that in most circumstances someone who denies having a previous conviction or caution after the conviction or caution is “spent” cannot suffer any consequences for doing so. 


Exceptions 
There are exceptions to the 1974 Act which mean that former offenders who seek employment in certain protected fields of employment must still disclose to their employer or appropriate regulatory body that they have a previous conviction or caution. 
The exceptions to the 1974 Act are contained in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (SI 1975/1023) (“the 1975 Order”). 
Examples of professions exempt from the 1974 Act include:- 
Health Care Professional (Including Doctors & Nurses) 
Barristers and Solicitors 
Charted Accountants and Certified Accountants 
Veterinary Surgeons 
Actuaries 
Registered Foreign Lawyers 
Chartered legal executive or other CILEx authorised person. 
The 1975 Order also includes general exceptions to the 1974 Act which cover suitability of employment certain fields.  Examples of the fields where exceptions apply include:- 
Cases involving the grant of approvals and permissions by the Financial Conduct Authority 
Work with children or vulnerable adults 
Checking Whether Someone Has Previous Convictions or Cautions 
In order for employers and regulators to monitor whether an employee or regulated person has any previous convictions or cautions a statutory scheme for the disclosure of convictions and cautions was established by Part V of the Police Act 1997 (“the 1997 Act”). 
Under the 1997 Act the Disclosure and Debarring Service is required to issue a criminal record certificate or enhanced criminal record certificate as appropriate on receipt of a properly certified request. 
As originally enacted the 1997 Act required the disclosure of all criminal convictions and cautions whether current or spent for both criminal record certificates and enhanced criminal record certificates.   
The difference between the enhanced and the “regular” criminal record certificates was the inclusion of so called “soft intelligence” held by the Police in the enhanced criminal record certificates.   
An example of “soft intelligence” would be details of a police investigation into a person which did not result in a conviction or caution. 
Why and How the Law on Disclosing Convictions and Cautions Began to Change 
The original scheme for the disclosure of previous convictions and cautions was ruled incompatible with the European Convention on Human Rights in the case of R (T) v Chief Constable of Greater Manchester Police & ors. [2014] UKSC 35 (“the case of T”). 
In the case of T the Supreme Court ruled that the cumulative effect of a failure to draw any distinction on the basis of the nature of the offence, the disposal in the case, the time elapsed since the offence took place, the relevance of the data to the employment sought, and the absence of any mechanism for independent review of a decision to disclose data made the scheme for disclosing previous convictions and cautions incompatible with a person’s Human Rights. 
In response to the case of T the definition of what “a relevant matter” was for the purpose of disclosure was amended in the 1997 Act.   
Currently a “relevant matter” for the purpose of disclosure for a Criminal Record Certificate and Enhanced Criminal Record Certificate as defined by section 113A(6) of the 1997 Act is:- 
in relation to a person who has one conviction only: 
a conviction of an offence within subsection (6D); 
a conviction in respect of which a custodial sentence or a sentence of service detention was imposed; or 
a current conviction. 
in relation to any other person, any conviction; 
a caution in respect of an offence within subsection 6(D); 
a current caution 
 
Current Law on Disclosure 
The changes to the 1997 Act mean that “spent” cautions should not be disclosed (unless they are for a “specified offence” as prescribed by section 113A(6)(D) of the 1997 Act) and that if a person has only one “spent” conviction for an offence where they did not receive a sentence of imprisonment and the conviction is not for a specified offence then it should not be disclosed. 
Specified offences are listed in Section 113A(6)(D) of the 1997 Act and are offences of the most serious kind such as murder, kidnapping, manslaughter, assault with intent to resist arrest and cruelty to children. 
Why the Current Law on Disclosure is Still Flawed 
On the 22nd of January 2016 the Lord Justice McComber of High Court gave a ruling in the case of R. (on the application of P, A) v Secretary of State for Justice [2016] EWHC 89 (Admin) (“the case of P”) that the current scheme concerning the disclosure of convictions and cautions was incompatible with Article 8 of the European Convention on Human Rights. 
The case of P involved two claimants who have been anonymised as Ms P and Mr A respectively.   
Ms P is a 47 years old woman who suffers from schizophrenia.  During the 3 ½ year period when her condition had not been recognised, and consequently not treated, she committed two offences of theft on the 26th of July 1999 and 13th of August 1999.  The thefts were of a sandwich and a book (priced at 99p).   Ms P failed to attend her first Court appearance and was consequently convicted not only of theft but also of failing to surrender to Court when required to do so. 
Mr A is now 51 years old. On 15 October 1981, when he was 17 years old, he was convicted of theft of a coat from a market stall. He was fined £30. On 6 August 1982, 23 days after his 18th birthday, he was convicted of stealing a motor cycle and of driving without insurance for which he was fined £50.00. 
Ms P wants to work within schools as a teaching assistant and Mr A works as a finance director where his work may be regulated by the Financial Conduct Authority.   
Despite the passage of time since either of them committed their crimes both Ms P and Mr A still have to disclose their convictions because they have more than one conviction.  If Ms P and Mr A only had one conviction each then the convictions would not be disclosed. 
Lord Justice McComber who considered the case of P took the view that the life time disclosure of minor convictions was a disproportionate inference with the individual rights of Ms P and Mr A to be rehabilitated.   
As the Judgement in the case of P is only a few weeks old it is not clear whether the Government will further amend the disclosure regime, appeal the ruling or do nothing; however there is likely to be further pressure following this ruling to change the disclosure regime. 


Further Advice 
This article is intended to be a brief summary of the law on the disclosure of previous convictions and cautions. 
If anyone reading this article wants to learn more about the circumstances in which previous convictions must be disclosed then they would be strongly advised to speak to either a Solicitor or a Barrister familiar with this area of law. 
Barristers at 9 King’s Bench Walk can provide advice on when previous convictions should be disclosed by individuals or can be disclosed by the Disclosure and Debarring Service.   
Disclosure requirements for regulated professionals and those involved in prescribed activities such as working with children and vulnerable adults are more complicated and consequently the costs of legal advice vary accordingly.   
For further information about instructing a Barrister at 9 King’s Bench Walk please contact either Gary Wright or David Carter.