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Areas Of Expertise

Direct Access Representation

Direct Access means instructing a barrister directly without needing to also instruct a solicitor. Not all cases are suitable for this kind of representation, and it is only suitable for clients who are confident and competent to manage their affairs without the services of a solicitor, but for those that are, significant financial savings can be made. Damian is listed in the Bar Council's Direct Access Portal, although it is not necessary to go through that in order to instruct.


Comprehensive details are provided to every prospective client as to the scope and limits of the Direct Access service, the rights and protections that the client is entitled to, and the route for complaint should any client feel the need to express dissatisfaction.

Criminal Defence - General Crime

Expert representation across the full range of criminal offences.


Examples:


  • violence: GBH, ABH, battery etc;
  • drugs: possession, supply, cultivation;
  • offences based in dishonesty (fraud, theft, burglary etc);
  • communications offences: online threats etc;
  • offences arising from corruption or misconduct in public office;
  • hate speech and public order offences;
  • offences arising from responsibility for dangerous dogs or other animals;
  • weapons: knives, guns, explosives;
  • criminal damage and arson;
  • child cruelty;
  • modern slavery;
  • animal cruelty;
  • offences related to terrorism;
  • perjury and perverting the course of justice;
  • environmental crime.


Sexual Offences

Specialist defence representation for those accused of sexual offences. We understand that allegation of sexual offending carry a particular risk of stigma no matter how prosecutions of this kind end, and that accusations of this kind put reputations, careers, and relationships in real jeopardy.


Allegations in this category that Damian has experience of successfully defending include:

  • Rape (and other penetrative offences);
  • Sexual Assault;
  • Sexual offences against children and young people;
  • Sexual offences against children committed by other children or young people;
  • Indecent images of children (IIOC);
  • Extreme pornography and prohibited images;


Additionally, Damian has extensive experience of cases in which behavioural and supervision orders feature either stand-alone, or post-conviction. These include Sexual Risk Orders, Sexual Harm Prevention Orders, and Restraining Orders. That experience includes limiting the scope of restrictions, and/or duration of the Order where an Order is inevitable; and defeating prosecution applications for Orders where there is an arguable case that the Order should not be made at all. Such examples even include cases in which defendants have pleaded guilty to possession of IIOC, and sexual communication online with a child.


The reason why applications can be defeated in what might at first seem a hopeless case for the defence is that the statutory test for making an Order of this kind is necessity, and if the court can be persuaded to find that in the particular circumstances of the individual case that that necessity is absent, then the court has no power to make the Order at all.


Even where an Order is necessary, it does not follow that it is necessary to make it for the duration that the prosecution might seek (often, without a specified end date). Resisting the imposition of a SHPO or SRO, or limiting the duration of the Order where either of those can be done is important because for as long as a person is subject to one of those Orders, notification requirements also remain - which is the Sex Offenders' Register - and all that goes with inclusion on it.


Historic Offending

The law is not static. It changes over time, and sometimes at a pace that can surprise even the well-informed.

For reason that a defendant must be tried according to what the law was at the date of the act that the prosecution complains about, access to both current and historic materials is a vital part of a lawyer's toolkit.

This applies irrespective of the allegation, but most commonly features in cases of alleged historic sexual offending in which the allegations have not come to light for many years. The law as applies to sexual offences has changed considerably this century, and defences that would not be available to allegations of behaviour committed today are sometimes available to allegations of behaviour committed years or even decades ago. Damian's many years as an academic prior to entering practice has seen his accumulation of a formidable legal library, as well maintaining a full range of current printed materials and live access to the leading databases of Westlaw and Lexis Nexis.


Driving Offences

Damian has considerable experience defending motoring matters, and understands the impact on people's lives that come from the loss of the entitlement to drive. Damian's experience goes to both technical and factual defences, and covers:


  • Dangerous/careless driving;
  • Excess alcohol offences (drink drive or drunk in charge);
  • Drug driving offences (typically cocaine, cannabis, amphetamines and the break-down products from their use);
  • Offences of failing to provide samples;
  • Speeding;
  • No insurance;
  • Driving without a valid licence;
  • New driver licence revocation;
  • Exceptional hardship applications (totting for 12+ penalty points)


For 'totters', i.e. those who accumulate 12 or more active penalty points in a 3-year period, the presumption is that the court will disqualify for 6 months (or longer in the case of repeat totting offenders), but that presumption can be disapplied if there are grounds why the normal disqualification should either not be imposed, or not imposed for the usual duration.


When making what is commonly called an 'exceptional hardship' application the burden is on the applicant to show to the court why the disqualification should not be imposed, or should not be imposed for the usual duration.


Damian has succeeded in persuading courts to allow offenders to continue to drive with as many as 18 live penalty points on numerous occasions, and, contrary to common belief, the basis for making an application not to disqualify is not restricted only to a finding of exceptional hardship. More than once, Damian has persuaded a court that it was in the public interest to allow an offender to continue to drive notwithstanding an accumulation of 12 or more live penalty points. Such examples are rare, and those clients had jobs that meant that there was an obvious importance to the public interest that their ability to get to work not be removed by disqualification. Both of these clients had no claim to exceptional hardship, and the entire application in both cases was founded in the detriment to society. Usually, an application asking the court not to disqualify will be founded in the unreasonable impact it will have on the offender or those who depend on that person, but the above examples show that with some lateral thinking, other grounds can be advanced if the offender's circumstances can support an alternative lawful argument.


Appeals from decisions of a Magistrates' Court

Ordinarily, the route of appeal from a decision at the Magistrates' Court (whether by lay Justices, or a District Judge) is to the Crown Court.


This is the only level of appeal for which permission is not required. If a person is convicted after trial, or sentenced in a Magistrates' Court, there is an automatic right of appeal to the Crown Court, whereupon the procedure being appealed (the conviction or the sentence or both) are done again before a fresh tribunal, headed by a Crown Court judge.


For appeals against conviction, trial is held again and, as below, the Crown must prove its case, otherwise acquittal must follow. For appeals against sentence, the process is to put aside the sentence below and undertake the sentencing exercise again, and subject to the court being limited to the powers that the magistrates could have imposed, the full range of sentence for the relevant offence is available to the judge. If a driving disqualification is a relevant consideration, the court will look at its powers and decide what is appropriate for the facts of the case. Where disqualification was not mandatory (be aware that it is for alcohol/drug drive offences, and dangerous driving) then whether disqualification is required at all will likewise be reconsidered. For any disqualification, including those that are mandatory, subject to the requirements of the law as to minimum terms, the duration of the disqualification will then also be reconsidered.


If magistrates have imposed a Sexual Harm Prevention Order, a Sexual Risk Order, a Stalking Protection Order, a Restraining Order and the like, those can also be appealed to the Crown Court.


Appeals to the Court of Appeal

For those convicted or sentenced at the Crown Court, the usual destination for appeal is by application to the Court of Appeal for permission to appeal. Save for those referred by the Criminal Cases Review Commission, all cases that reach an appeal hearing must first be given permission to appeal.


Permission is obtained either by persuading the Crown Court judge who dealt with the case to certify that it is suitable for appeal, or, far more commonly, by a written application to the Court of Appeal; a process that typically takes several months.


Clients considering seeking permission to appeal to the Court of Appeal should be alert to the 28-day time limit from the relevant event (conviction, or sentence), and that any application for an extension of the time limit has to be accompanied by an explanation for why the time limit was not met. Where conviction and sentence happen on different dates, then the time limit will have a different expiry date.


The Court of Appeal has the power to extend the time limit by whatever length is necessary, and there are examples where it has extended the limit by many years. However, even the smallest extension requires an explanation, and the longer the extension that is sought the greater must be the justification for why that extension should be granted.


Nevertheless, the approach taken by the Court of Appeal is that the interests of justice are the uppermost consideration, and there are examples where those interests justified the granting of an extension to the time limit even where there was found to be no good reason for the ordinary limit having not been met. That should not be seen as in any way diminishing the importance of meeting the time limit if it can be done.


For clients who were represented by other counsel at a previous hearing, if any criticism of that previous barrister is necessary in the making of an application for permission to appeal, then there is a requirement that the prospective appellant sign a waiver of level privilege so that the previous barrister is free to comment on the criticism if asked to, and it is usual for the Court of Appeal to seek that comment in the preparatory stages following receipt of an application for permission..

Defence Fees

If you are eligible for legal aid, then you must go through a solicitor who will then attempt to find you a barrister if you need one. Barristers are not permitted to accept instructions on a direct-access basis under a legal aid Representation Order.


Direct access is for privately paying clients only. Fees in cases that are privately paid always depend principally upon the complexity and volume of the work, and sometimes also the urgency (e.g. if evening and weekend work is required in order to meet a short deadline).


The fee for work to be done will always be made clear in advance of that work being done, and payment will not be taken until the client has confirmed acceptance both of the fee, and the terms and conditions (which include details of the client's rights and the complaints process); all of which is provided to every client at the point that a proposed instruction is discussed.


For reason that there is no 'typical' court case, fees for advice and advocacy will vary as the length and complexity of the cases themselves vary.


Advice is available either face-to-face (whether in the same room, or over a secure video link), or by way of a written Opinion. Typically, those wanting to know if an appeal to the Court of Appeal from conviction or sentence or both might be available to them will be offered an Opinion on their prospects. Where relevant, an Opinion on a prospective sentence appeal will also consider an ancillary Orders that were made (eg driving disqualifications, Restraining Orders, Sexual Harm Prevention Orders etc).


All fees must be subject to the addition of VAT.


Costs

The basic principle is that for those successful in court, recovery of some or all of the costs incurred is possible. Likewise, for those who lose there should be an expectation that they will be ordered to pay some or all of the costs of the opposing party.


In civil litigation, this is called 'costs follow the event', and it is typical that all or most of the costs incurred by the winning party will be awarded against the losing party, subject to any judicial assessment as to reasonableness of the amount.


In criminal cases, it is not quite the same, but the principles have some application. For those prosecuted by the Crown Prosecution Service (the large majority of prosecution cases), upon conviction there will be an application for a contribution to costs, which typically ranges from usually £85 at the lowest, to approaching £5,000 for a short trial that has ended in conviction. It is only a contribution to costs, as those prosecuted by local authorities and other prosecuting bodies often find out, and in such case the costs applications can be well into five or even six figures.


For those who are successful in defending a prosecution, the usual recovery of costs is via an order under s.16 Prosecution of Offences Act 1985 which allows for payment from central funds. Since the changes made by the 2010-2015 coalition government, that has been only at legal aid rates irrespective of how much an acquitted person has actually paid, and, worse, to recover costs under s.16 relating to a Crown Court case, one must first have applied for and been refused Legal Aid. Without that refusal, (save for basic out-of-pocket expenses) the recovery of costs under s.16 is limited to costs incurred when the case was at the Magistrates' Court stage, even if the defendant has then succeeded in a Crown Court trial.


However, where a prosecution can be shown to have been obviously unreasonable - and the bar for that is very high - an Order can be sought under s.19 of the 1985 Act, which allows full recovery of the total financial loss which must be paid by the prosecuting agency itself. The best result that Damian got for a client in this way was an Order for recovery of just shy of £18,000 in respect of what the judge found to be a wholly wrongful prosecution of a man on an allegation of sexual assault. The judge stopped the case after the close of the prosecution evidence following Damian's successful half-time submission that the defendant had no case to answer. A successful no-case submission is not by itself sufficient to then achieve a s.19 costs Order, but in this particular case the evidence that the defendant should never had been prosecuted at all was there, as a result of which the judge ordered the prosecuting agency to meet the entirety of his liability in private defence fees. That was an exceptional result that was justified on what were exceptional circumstances, and that the prosecuting agency did not appeal the Order must be taken to show that (at least by then) it realised its mistake.

Litigation Services

Litigation is the administrative part of being involved in court proceedings; the interaction with the court and the other parties to the case. It includes filing and serving documents, being alert to and meeting deadlines, responding to enquiries or Orders that are made, instructing experts, assembling the bundles for court, and the like.


Damian is authorised by the Bar Standards Board to conduct litigation, which - and only for suitable cases, of which advice will be given at first consultation - means the stress and uncertainty that clients may otherwise feel when needing to personally conduct their litigation can be alleviated. Only a small proportion of Direct-Access barristers also have the litigation authorisation.

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