Tod and Mitchell specialise in all aspects of criminal defence work and regularly appear in criminal courts throughout Scotland dealing with cases in the High Court of Justiciary, the Sheriff Court and the Justice of the Peace Court.
Why use us?
Tod and Mitchell and our team of highly respected and experienced solicitors are well-known for our professional approach, vast knowledge of law and high percentage of case wins. Our head office is based in Paisley giving us the perfect central location for working with clients attending courts in Glasgow, Paisley, Dumbarton, Greenock and many more courts across Scotland.
Sexual Offence Solicitors Dumbarton
Only those who have suffered from false allegations of sexual crimes can know how absolutely devastating this can be for the person who is the victim of the allegation and their friends and families.
At Tod and Mitchell, we have the experience necessary to advise clients with sensitivity and understanding during what is undoubtedly an extremely difficult time. Sadly, it is not uncommon for false allegations to be made in relation to crimes of this nature and the presumption of innocence must never be forgotten.
The Sexual Offences (Scotland) Act 2009 created a code of sexual offences which reformed this area of law. Most of the Act came into force on 1 December 2010 and the vast majority of sexual offences, including the crime of rape, are now prosecuted under this legislation.
We have successfully defended many cases where the accused person has lodged a special defence of consent. This defence applies when the complainer in the case was a willing participant and consented to what happened. The Crown require to prove the absence of consent rather than the accused having to prove the existence of consent.
For the first time there is now a statutory definition of “consent” which can be found in the Sexual Offences (Scotland) Act 2009: “consent” means free agreement (and related expressions are to be construed accordingly). The Act goes on to set out certain circumstances where there is no free agreement, for example, where a person is incapable because of the effect of alcohol or any other substance of consenting or if the person is asleep or unconscious.
As well as defending allegations of rape, we represent people accused of every other type of sexual offence inlcluding sexual assault, indecent behaviour, offences involving minors and all offences under the Sexual Offences (Scotland) Act 2009
In today’s era of increased reliance on personal and tablet computers, more and more people are being prosecuted for the alleged misuse of technology, for example, using computers for the purpose of grooming or for downloading or distributing illegal images, photographs or pseudo-photographs contravening section 52 or section 52A of the Civic Government (Scotland) Act 1982 .
In relation to section 52 the Crown require to be prove that the act of making the photograph should be a deliberate and intentional act with knowledge that the image is, or is likely to be, an indecent photograph or pseudo photograph. It is a defence if the accused has a legitimate reason for distributing material, showing material or having material in his possession. The accused requires to satisfy the jury on the balance of probabilities that he had such a legitimate reason or no knowledge of suspicion of the nature of the material. Proof on the balance of probability is a lower burden than beyond reasonable doubt however if it can be established with the correct presentation of your case then the accused is entitled to be acquitted.
It is a defence to a charge under section 52A if the person can show that he had a legitimate reason for having the photograph or pseudo-photograph in his possession; or that he had not himself seen the photograph or pseudo-photograph and that he did not know, nor had any cause to suspect, it to be indecent; or that the photograph or pseudo-photograph was sent to him without any prior request made by him or on his behalf and that he did not keep it for an unreasonable time.
The sentences for such offences are severe and can often be long periods of imprisonment. That is why it is vital that you obtain the very best legal advice.
At Tod and Mitchell we have a great deal of experience in respresenting clients charged with these types of offences with considerable success. We regularly instruct the very best forensic computer analysts to provide us with defence reports which scrutinise every aspect of the police investigative procedures with a view to supporting your defence.
The Domestic Abuse Task Force
On 5 December 2008 the creation of the Police’s Domestic Abuse Task Force was approved with the objective being “To reduce the overall harm of domestic abuse, particularly in respect of victims who have are at risk of serious violence and by these means ultimately reduce incidents of domestic abuse homicide in what was the Strathclyde Police Force area”.
If you are the subject of an investigation by the Domestic Abuse Task Force, it is very common to learn that the police have interviewed many, if not all of your former partners in order to establish whether or not they are prepared to make allegations of physical or sexual abuse, including rape.
To be the subject of such an enquiry can be extremely stressful and it is vital that you obtain legal advice at the earliest possible opportunity. Tod & Mitchell have dealt with numerous cases which were investigated by the Domestic Abuse Task Force with clients having to defend abuse charges on the basis of allegations from ex-partners sometimes relating to incidents which occurred decades ago. These cases are notoriously complex and require legal practitioners to diligently prepare your case ensuring that no stone is left unturned in relation to your defence.
The Moorov Doctrine
Moorov -v- HM Advocate 1930 JC 68 is a legal authority often relied upon by the Crown. This case involved an accused person who was an employer allegedly responsible for committing a string of sexual offences against 19 of his female employees during a period of four years.
The Moorov Doctrine which resulted from this case is that if crimes charged are so closely linked by their character, the circumstances of their commission, the place of commission and the time of commission, as to bind them together as parts of a single course of criminal conduct systematically pursued by the accused, then the evidence of one witness about the commission of one crime is sufficiently corroborated by the evidence of one witness about the commission of each of the other crimes. In other words, it is the underlying similarity of the conduct which will be taken into account by the Court. This allows the Crown to bring a case to trial in circumstances where there is only one witness to a specific incident which without the application of the Moorov Doctrine would result in a lack of corroboration and therefore an insufficiency of evidence.
The Moorov Doctrine has been the subject of more appeals against conviction than almost any other legal concept. At Tod & Mitchell, our solicitors and solicitor advocates have the knowledge of the legal precedents and the expertise you will require to ensure that the appropriate legal submissions can be made on your behalf either to the Procurator Fiscal before the charges are brought or in Court during the course of the trial with a view to arguing, where appropriate, that the Moorov Doctrine should not apply in your case.
Conducting your Trial
Cross-examining witnesses in sexual offence cases is another particular skill that can only be mastered by experience. Our solicitors and solicitor advocates at Tod & Mitchell have collectively over 100 years’ experience of successfully defending sexual offence cases.
It is generally accepted that cross-examining the witnesses in sexual offence cases requires a greater degree of care, attention and sensitivity than in any other type of case. This applies even more when the witnesses are classed as vulnerable or where the witnesses are children. Such evidence is often given behind screens or by way of television link.
At Tod & Mitchell, we understand the balance to be struck in relation to the Court’s protection of vulnerable witnesses and the need to present our client’s defence in the strongest, most effective terms possible.
Section 274 and Section 275 of the Criminal Procedure (Scotland) Act 1995 places restrictions on the evidence that may be led in relation to sexual offences:
Section 274 Restrictions on evidence relating to sexual offences.
(1) In the trial of a person charged with an offence to which section 288C of this Act applies, the court shall not admit, or allow questioning designed to elicit, evidence which shows or tends to show that the complainer—
(a) is not of good character (whether in relation to sexual matters or otherwise);
(b) has, at any time, engaged in sexual behaviour not forming part of the subject matter of the charge;
(c) has, at any time (other than shortly before, at the same time as or shortly after the acts which form part of the subject matter of the charge), engaged in such behaviour, not being sexual behaviour, as might found the inference that the complainer—
(i) is likely to have consented to those acts; or
(ii) is not a credible or reliable witness; or
(d) has, at any time, been subject to any such condition or predisposition as might found the inference referred to in sub-paragraph (c) above.
Section 275 allows for exceptions to these restrictions. An application must be made in writing to the Court and legal submissions will then be required to persuade the Judge or the Sheriff that the evidence sought to be elicited should be admissible.
Our solicitors and solicitor advocates have the expertise required to draft applications under Section 275 of the Criminal Procedure (Scotland) Act 1995 and to present the applications in Court. We have had considerable success in persuading Judges and Sheriffs to allow evidence to be heard which turns out to be critical in ensuring that our client is found not guilty.
Unlike some other areas of law, there is no time limit as to when sexual offences may be prosecuted in Scotland. Complaints about an incident or multiple incidents alleged to have occurred many years ago will still be investigated by the police.
These cases require a forensic aproach to what are invariably complicated issues of law involving often thousands of pages of medical records, social work records, housing records and witness statements. We have the expertise and the man-power necessary to review all of the evidence in order to identify what information can be used to support your defence.
If you become aware that the police are investigating you in relation to an alleged historic sexual offence or in relation to an alleged recent incident then you should contact us immediately. It is vitally important to have a defence strategy in place from the outset. We are available 24 hours a day on our emergency line: 0141 889 1449.