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mudpie
Hello

It's been a while since I came on here, I'm hoping to find an answer from somewhere regarding how an official caution for an offence is carried out, and if the person over 18 can be accompanied by another adult.

Basically my wife is being cautioned order the dogs act 1953, for not having our dog under control and it chasing sheep in the farmers field. She unwittingly told the whole truth under a contemporaneous interview, and as such it would have been almost impossible to defend as she basically admitted the offence. Fortunately the solicitor has negotiated with the CPS to secure a Caution rather than a prosecution.

She is however totally gutted, and would like me to go with her for moral support, but I'm unsure if I can be present or not.

Can anyone give any advice please.

Thanks.
sgtdixie
There is no reason why you couldn't be with her. But unfortunately some people who do so can't keep their mouth shut and cause problems. This means some officers will not allow anyone other than a legal rep to be present.

I can't see the problem here. You appear to say she committed the offence but there was a problem with her admitting it. Had she not she could have end up at court.
mudpie
Well, there is not a problem sgtdixie, however a lot of dogs were in the area at the time, and the witnesses were unreliable at best as they only heard, not saw the incident.

Had she said this, perhaps the burden on the police to prove specifically it was her dog, in the absence of CCTV, DNA etc., would have been difficult

It is a summary offence, which in the absence of any loss of livestock, and my immediate offer of financial compensation to the farmer on the day for any inconvenience caused, my opinion is that it was a very harsh way to deal with what was basically an accident.

crashdetective
Welcome to 2014
peterguk
QUOTE (mudpie @ Fri, 12 Sep 2014 - 20:25) *
perhaps the burden on the police to prove specifically it was her dog, in the absence of CCTV, DNA etc., would have been difficult


So would you have recommended her lie under oath in court when asked "did you dog chase the sheep on that fateful day?"

QUOTE (mudpie @ Fri, 12 Sep 2014 - 20:25) *
what was basically an accident.


Out of interest, what was an accident? He allowing her dog to be unleashed in the presence of livestock, or her dog chasing sheep?
sgtdixie
Her options were to lie or tell the truth. Are you suggesting she should have lied?
mudpie
Not sure where this is going really. It seems a shame to me that such an effort can be made to penalise a person with NPC and of good standing, when a blind eye is given to other crime.

We apologised, and offered to pay for any damage and his time.

Perhaps this is why, as I don't like the system we have here in this country, I'm trying my best to leave.

Thanks for the advice on the caution, and good evening to you all.
sgtdixie
A caution avoids going to court. Seems a proportionate resolution to me.
mrh3369
The offence was clearly committed and the lady had the good grace to be truthful and this has meant that a caution can be issued, it really is no big deal in the grand scale of things, instead of ranting give her a slap on the back and kudos for doing the right thing.
captain swoop
So your wife let the dog run free and chase livestock and it's the system that's wrong not your wife?

Your lucky the farmer didn't shoot it.
crashdetective
It's not the crime of the century, tell you what is though - farmers leaving crap all over the road. I hate having to wash my car!
Mattd
To answer the original question it will depend on the force in question as to whether they allow you to be present. Some forces will do this at out stations and nowhere near a custody suite, some will do it in the custody suite but obviously not under arrest just due to the proximity of the computers etc that generate the paperwork. It isn't normal to allow an adult to accompany another adult.
andy_foster
QUOTE (sgtdixie @ Fri, 12 Sep 2014 - 20:34) *
Her options were to lie or tell the truth. Are you suggesting she should have lied?


Presumably you have no experience of police interviews? If the person being interviewed is suspected of an offence, the policeman - that's the one in the uniform - starts off by cautioning the suspect that they have the right to remain silent, etc. Unless you have redefined lying to include not confessing to the nice policeman, her options were not restricted to lying or telling the truth.
sgtdixie
I know enough about interviews to know that the concept of a confession is 15 years out if date.

In your own words how is being sarcastic and patronising helping the OP. A clue; it isn't.
peterguk
QUOTE (andy_foster @ Sat, 13 Sep 2014 - 12:40) *
QUOTE (sgtdixie @ Fri, 12 Sep 2014 - 20:34) *
Her options were to lie or tell the truth. Are you suggesting she should have lied?


Presumably you have no experience of police interviews? If the person being interviewed is suspected of an offence, the policeman - that's the one in the uniform - starts off by cautioning the suspect that they have the right to remain silent, etc. Unless you have redefined lying to include not confessing to the nice policeman, her options were not restricted to lying or telling the truth.


Andy, genuine question:

So accused excercises her right to silence during interview, and matter goes to court.

I presume when asked under oath in court "did you dog chase the sheep on that fateful day?" she has three possible responses:

"Yes"
"No"
"I refuse to answer that question" or says nothing.

Surely saying nothing in an interview is just delaying the inevitable problem?
sgtdixie
QUOTE (peterguk @ Sat, 13 Sep 2014 - 13:15) *
QUOTE (andy_foster @ Sat, 13 Sep 2014 - 12:40) *
QUOTE (sgtdixie @ Fri, 12 Sep 2014 - 20:34) *
Her options were to lie or tell the truth. Are you suggesting she should have lied?


Presumably you have no experience of police interviews? If the person being interviewed is suspected of an offence, the policeman - that's the one in the uniform - starts off by cautioning the suspect that they have the right to remain silent, etc. Unless you have redefined lying to include not confessing to the nice policeman, her options were not restricted to lying or telling the truth.


Andy, genuine question:

So accused excercises her right to silence during interview, and matter goes to court.

I presume when asked under oath in court "did you dog chase the sheep on that fateful day?" she has three possible responses:

"Yes"
"No"
"I refuse to answer that question" or says nothing.

Surely saying nothing in an interview is just delaying the inevitable problem?

The problem with making no comment is that an adverse inference can be made. The most common inference a court draws is that the suspect is not denying the offence or contradicting evidence because they have something to hide.

FWIW if you go in the box you cannot refuse to answer questions. I have seen a defendant jailed for contempt because he refused to answer questions.
andy_foster
QUOTE (peterguk @ Sat, 13 Sep 2014 - 13:15) *
Andy, genuine question:

So accused excercises her right to silence during interview, and matter goes to court.

I presume when asked under oath in court "did you dog chase the sheep on that fateful day?" she has three possible responses:

"Yes"
"No"
"I refuse to answer that question" or says nothing.

Surely saying nothing in an interview is just delaying the inevitable problem?


The accused wouldn't give evidence if she intended to exercise her right to silence. [Other than under s. 172], no-one can be compelled to incriminate themselves. That is a fundamental principle of English and International law. There is no obligation to take the stand, but you cannot selectively give evidence.

SgtDixie is correct in that an adverse inference can be taken from a refusal to give evidence, but you cannot be convicted on an adverse inference alone. If you are represented at trial and are not present, it is far from certain that such an inference would be taken.

In purely practical terms, and assuming that you do not intend to pervert the course of justice or commit perjury, the issue is whether there is sufficient evidence without your confession, in which case it may well be prudent to 'fess up and hope that they will go easy on you, or if there is insufficient evidence without your confession in which case the best advice is probably at the beginning of the caution.

We do not know the full details of the case, but from what the OP says, it sounds like they may well not have had sufficient evidence without his wife's confession.

@SgtDixie - you were quite simply talking bollox, and unlike other posters you do not have the excuse of not being aware of the right to silence. As regards how this discussion assists the OP, it is not an active case thread, the issues that he raised are entirely academic as she confessed, the remaining question has already been answered as well as it ever will be (by Mattd), and this thread belonged in the Flame Pit from inception.
crashdetective
S36 Cj&POA/Pace applicable in this case?

Adverse inferences? Not IIRC.

Edit Typo
sgtdixie
QUOTE (andy_foster @ Sat, 13 Sep 2014 - 15:06) *
@SgtDixie - you were quite simply talking bollox, and unlike other posters you do not have the excuse of not being aware of the right to silence. As regards how this discussion assists the OP, it is not an active case thread, the issues that he raised are entirely academic as she confessed, the remaining question has already been answered as well as it ever will be (by Mattd), and this thread belonged in the Flame Pit from inception.

Had you considered that my reply was within the context of the OP where the point was she told the truth in interview. I was not attempting to explain all the options as must have been blindingly obvious even to you. So only bollocks if you dont understand English. I would also point out it is a live case and advice has been requested about the procedure regarding the caution.

Perhaps a little less enthusiasm for criticism just to prove how clever you are might be a good thing especially when you embarrass yourself.
crashdetective
It's a common theme Dix?
sgtdixie
You obviously worked for some of the same bosses as me.
bama
err, burden of proof. (as per a_f)
seems the OPs other half wasn't au fait with it.
sgtdixie
As we have no idea of the facts or evidence we have no idea whether the matter would have been proved at court even without her saying anything.
bama
no idea ?
did you not read post #3 ?
http://forums.pepipoo.com/index.php?showto...t&p=1001524
sgtdixie
QUOTE (bama @ Sun, 14 Sep 2014 - 14:03) *

I would hardly call the post a definitive description of the evidence. Many people are convinced there is insufficient evidence to prosecute them. I have sat opposite hundreds in interview. A great many are very wrong.
bama
so now its gone from 'no idea' to 'definitive'....
sgtdixie
So can you tell me exactly what evidence the Police had? I hardly consider
QUOTE
a lot of dogs were in the area at the time, and the witnesses were unreliable at best as they only heard, not saw the incident
gives us any idea as to the level of actual evidence there was. From this I would suggest we actually have no idea of what happened unless you want to start guessing.
Pancras
It isn't either a serious offence or once involving any dishonesty so accepting the caution shouldn't cause any problems whatsoever in the future for her.

Looking at it from the other viewpoint, the farmer has brought the matter to the attention of the Police, and they are duty bound to investigate. Offering a caution is one of the lowest forms of disposal available to them. It is basically a 'don't do it again' talk.
crashdetective
Another option is words of advice and go back to the farmer and suggest that your even handed so you'll just warn him about the unroadworthiness of his trailer that he's had pottering on the road without lights, knackered tyres etc.

But that's just me.
mudpie
Sorry to stir up such a hornet's nest.

You are totally correct, morally, she was right to tell the truth from the beginning, but as we all know, decent people in this world seem to get pooped on from the greatest height.

In hindsight, the correct thing to have done would perhaps to have posted on here for advice before the interview took place.

I do still question that without the brutal honesty from my wife, a case could have been proved. It has been a valuable lesson, and I certainly would not walk into the trap of agreeing to be interviewed without a decent solicitor, it's not worth it. I was never suggesting that she should have denied it, just given the location and the number of dog walkers and animals in the area, I still think an element of doubt could have been introduced that was sufficient to create enough doubt over the event to avoid any action being taken.

If you imagine claud greengrass, that should paint enough of a picture. The irony is, the lambs that were there will be in a tescos near you, nicely packed in plastic.

I offered the full market price for 2 of them on the day before the police were involved, as he claimed they were injured and would not survive. That as it turns out was complete rubbish.
The Rookie
I think it's clear Justice has been served, the guilty caught and been 'punished', getting away with it is different to not being guilty.

If it's a sheep farming area you may find the dog gets lead poisoning if you aren't careful, I recall at least 3 being shot at neighbouring farms when I was young, but then if you've ever seen a sheep in severe distress from being chased or even mauled it's easy to understand why that happens.

I'd be more concerned about not having it happen again than getting away with it if it does.
10PenceShort
QUOTE (mudpie @ Fri, 12 Sep 2014 - 20:08) *
Hello

It's been a while since I came on here, I'm hoping to find an answer from somewhere regarding how an official caution for an offence is carried out, and if the person over 18 can be accompanied by another adult.

Basically my wife is being cautioned order the dogs act 1953, for not having our dog under control and it chasing sheep in the farmers field. She unwittingly told the whole truth under a contemporaneous interview, and as such it would have been almost impossible to defend as she basically admitted the offence. Fortunately the solicitor has negotiated with the CPS to secure a Caution rather than a prosecution.

She is however totally gutted, and would like me to go with her for moral support, but I'm unsure if I can be present or not.

Can anyone give any advice please.

Thanks.

The offence is complete if the dog was in a field containing sheep and not on a lead or under close control (see Dogs (Protection of Livestock) Act 1953, s.1(2)( c)).

Whether the dog was at large in the field and that the field contained sheep are straightforward matters of fact. Would you dispute either of these?

I would note the maximum penalty for a first time offender is £10. I would also note that to institute proceedings there must be specific permission from any of the chief constable, the occupier of the land or owner of the livestock.

If your wife refused a caution, the Police would have to decide whether or not to charge her and begin proceedings. Whether or not they would choose to do so in the circumstances who knows, however I suspect if you went to court you might end up £10 lighter, as the offence is one of strict liability (see http://www.bailii.org/scot/cases/ScotHC/20...13HCJAC157.html) and on the facts it would appear to be an easy task to meet the test.

Also bear in mind that for the purposes of Rehabilitation of Offenders Act, a caution would be spent immediately, whereas a fine would, from recollection, have to be declared for a year (and may appear on standard and enhanced DBS disclosures well into the future, depending on how it sits with the filters).

In the circumstances, if I thought there likely to be sufficient evidence that sheep were in the field with my dog, and it was not on the lead or in close control, I'd take the caution.
PB-101
QUOTE (The Rookie @ Wed, 17 Sep 2014 - 20:34) *
If it's a sheep farming area you may find the dog gets lead poisoning if you aren't careful, I recall at least 3 being shot at neighbouring farms when I was young, but then if you've ever seen a sheep in severe distress from being chased or even mauled it's easy to understand why that happens.

+1

you're lucky it's this time of the year and not November / December; when our flock encountered 2 german shepherds on the loose (circa 25 years ago, when we were farming) we had 10 or more in lamb ewes die and then a large number of miscarriages down to stress.

Both dogs were destroyed and the owners paid a significant fine.
mudpie


Things have now taken a turn for the worse. I was phoned at 4pm on Friday by my solicitor to say the CPS had sent (in the version of events they are sticking too) many emails to the Police to get confirmation from the DDM or CPM responsible for the case to agree to accept a caution, and they have not received any response from them. Therefore, as it had been adjourned 2 weeks in order for the above process to take place, and basically it hasn't, the court are no longer prepared to grant a further adjournment, without a hearing and a plea. So, it is due to be heard at 10:45 on Monday morning.

I do have a contact in the Police, who basically does a similar role to the above, and in his opinion, he doubts the CPS have tried to communicate at all with the Police, and they are basically telling porky pies to my solicitor to cover themselves. He did speak with a CPM on Friday at my insistence, he looked at the file and could see no reason why the Police would refuse a move to Caution, or Conditional caution, to allow compensation to be made to the farmer, which we agreed to anyway. He himself however would not speak directly to the CPS and agree to this, as the case has been taken over by a higher level prosecution team, and due to the hour on Friday which we got round to speaking with the right people, they had left for the weekend.

So, basically, we have the CPS on one side who are happy for it to go to caution, and the police who on the face of it are not objecting. However, On Monday morning we have the dilemma of having a window of opportunity lasting 1:45m to get the Police and CPS to communicate with each other and then contact the magistrates court with an instruction, before the hearing starts.

Honestly, my solicitor has sat back during the 2 week adjournment period, and has basically taken on face value what the CPS has told them, without checking if actually anything has been done. They phoned at 3pm on Friday to tell me the state of play, then it was up to me to run round like a headless chicken and call in a favour to get names for them to speak to in the Police to check out what the CPS has asked for, which was nothing according to the file, as they claim nothing had been asked for from the CPS. Had they been a bit more proactive during the last 2 weeks, I'm sure we would not be in this position now.

I have this morning received the following communication from my solicitor:

"What we have is a most unsatisfactory situation. Leaving aside the obvious communication problems between the CPS and the police the position is we do not know if the court will agree to an adjournment. The decision is for the court alone and a third adjournment without a plea being taken is not something which the court managers generally tolerate as they are driven by performance figures and not any sense of justice in this day and age.

**** or **** will call the court after 9.15 and try and speak to the Legal Advisor. As there is still hope for a caution and as this is what you have instructed us to try an organise we will continue down this path and seek the adjournment. If the court refuses then then answer as far as I would advise is that you enter a not guilty plea and we take it from there signalling to the CPS the Not Guilty Plea was entered to facilitate their deliberations. If they ultimately agree to accept a caution they can discontinue proceedings in the same was as they would do now. Should they reject the caution you can still enter a guilty plea or fight as I advised on the telephone in our last discussions.

I am duty bound to point out that if you enter a Not Guilty plea and then change it to a Guilty Plea you are at risk of losing what is known as the 1/3 discount for what is described as an Early Guilty Plea. Officially the discount is reduced to 20% but this is not necessarily a major issue in your case as the maximum fine is still £1,000 and there is still the possibility of a conditional discharge. The CPS would normally ask for more than the standard £85 but once again a speedy retraction of plea will lead to arguments that this costs figure should remain the same.

However, there is the question of what costs are being generated in this case now. I will ask **** to send an invoice on Monday to show where we are. Inefficiency in the public service does have consequences which I am afraid are not recoverable from the state organs concerned.

Please provide instructions whether we carry on with the current course of action which is to continue to pursue a caution or simply enter a pleas – either Guilty or Not Guilty"


What would you chaps do now if you were in my position ??? Any advice gratefully received. Thanks.
peterguk
So did your wife receive a formal caution or not? wacko.gif
mudpie
No Peter. That's the point. The CPS agreed, claim they sent a request to the Police so they could agree. Nothing happened, so we are at the 11th hour now, with everyone in agreement and nobody communicating.
StuartBu
QUOTE (mudpie @ Sat, 27 Sep 2014 - 11:19) *
No Peter. That's the point. The CPS agreed, claim they sent a request to the Police so they could agree. Nothing happened, so we are at the 11th hour now, with everyone in agreement and nobody communicating.


S'cuse my higgorance but what's a DDM and a CPM?
mudpie
Sorry, it's short for dedicated decision maker, and case progression manager.
rosysparkle
The problem as I see it, from what you have posted, is that the police or the CPS may feel that you are trying to choose what punishment is given for an offence which has been admitted. First you wanted to repay the costs to the farmer and have no action by the criminal justice system, then when that was rejected you had your solicitor negotiate with the CPS for a caution. It is possible that the police/CPS feel that it is not a matter for the offender to choose which punishment they like best (or rather, dislike least), but a matter for the criminal justice system to administer the sanction that is considered by them to be the most appropriate.

I'm not clear if the CPS on their own can agree with the matter being dealt with by way of a caution - if they can there is no need for them to seek the agreement of the police, if they can not then they could not agree the request or guarantee to your solicitor that this would be possible.

I don't think anyone here can advise your wife what plea to enter on Monday, given that we do not know the strength of the prosecution case. Your solicitor appears to be recommending either a not guilty plea and if convicted accept that the discount for an early plea is off the table plus costs will be higher, or a guilty plea to obtain the greatest possible discount. If the prosecution case is strong enough that she is likely to be convicted, then an early guilty plea will lead to a lesser punishment. It's your wife's choice, and she needs to be guided by the solicitor as I assume she/he does know upon what the prosecution will rely.

The Rookie
Given she appears to have admitted the offence under interview, rebutting that with no credible alternative would seem to be slightly hard work.
mudpie
Well, we have asked for a NG plea to be entered, should the caution not be granted early in the morning.

Given the way the CPS seem to operate, we feel taking a gamble for a sympathetic bench and a poorly prepared prosecutor, we stand at least a chance of success.

I have googled extensively to try and find any legal definition of a dog or puppy, as a canine is not normally referred to as a dog until it is passed 12months old. If i could draw a parallel to child/adult it would certainly assist the case. If anyone knows this has been tested before in case law, that would be most helpful.
peterguk
QUOTE (mudpie @ Sun, 28 Sep 2014 - 11:47) *
Well, we have asked for a NG plea to be entered


So you're going for a technical offence and asking the bench to consider a young dog is not a canine?

IMHO, i can't see that getting very far.

And what about her already admitting the offence?
mudpie
No Peter. I'm going to argue a young canine is a puppy, and not a dog. Given that at the time my wife my in charge of a 4 and 6 year old, and it escaped from our garden at home, into the field that surrounds our house. The canine was 10 months old. It was inside the house, until let out by a 4 year old boy opening the back door of the house to get to its mother who was indisposed in the garden, painting, at the time.
StationCat
It might be considered that a puppy is a subset of 'dog' and still a dog. In the way that a child is still a 'person' even though not an adult. I think that the man on the Clapham Omnibus, when shown a puppy would describe it as a dog, albeit a young one.
sgtdixie
QUOTE (mudpie @ Sun, 28 Sep 2014 - 12:13) *
No Peter. I'm going to argue a young canine is a puppy, and not a dog. Given that at the time my wife my in charge of a 4 and 6 year old, and it escaped from our garden at home, into the field that surrounds our house. The canine was 10 months old. It was inside the house, until let out by a 4 year old boy opening the back door of the house to get to its mother who was indisposed in the garden, painting, at the time.

I don't have time to look this up but I seem to recall legislation changed some years ago to place an absolute responsibility on an animals owner for its actions even if there was no way the owner could even have known what was done. I know that when a walker left a gate open and one of our cattle got out damaging a vehicle our solicitor made it clear we hadn't a leg to stand on and we're liable.
Perhaps AF or SP can find the relevant provisions.

I would have thought your solicitor would know this stuff after so long monitoring the case.
DancingDad
I'm not an expert by any means but I would have thought that guilty with the actions of the 4 year old etc as mitigation far more likely to bring about a reasonable result then NG and a not my fault defense?
mudpie
Agreed.

But my train of thought leads to how the age of legal responsibility comes into play. If you look at how things work when a child commits an offence.

Then, given the puppy had not cleared the fence before, and would you as an owner be reasonably be expected to keep a canine on a lead in your own garden, then i think there must be grounds to consider that we had done everything reasonably possible to contain to animal on our own premises, and this was an unfortunate accident, which we tried to amicably and proactively resolve before the involvement of the police.

Surely, that must carry some arguement.



rosysparkle
It's not whether dog has reached an 'age of criminal responsibility' that is important here; the dog is not the one being prosecuted.

I do not believe that a member of the genus Canis is going to be classed in law as not a member of that genus under a certain age, even if there are conventions where they are known as puppy rather than dog or bitch before adulthood. They are still all Canis lupus familiaris, and the owner is still responsible for the damage that the animal does to other people's property or animals.

If you want my non-expert and personal opinion, I think your wife should enter a guilty plea, express remorse, accept that she broke the law and hope for a lenient fine. Clearly you disagree and you may get lucky.
StationCat
QUOTE (mudpie @ Sun, 28 Sep 2014 - 12:47) *
Agreed.

But my train of thought leads to how the age of legal responsibility comes into play. If you look at how things work when a child commits an offence.

Then, given the puppy had not cleared the fence before, and would you as an owner be reasonably be expected to keep a canine on a lead in your own garden, then i think there must be grounds to consider that we had done everything reasonably possible to contain to animal on our own premises, and this was an unfortunate accident, which we tried to amicably and proactively resolve before the involvement of the police.

Surely, that must carry some arguement.


Do you mean that you will argue your child let the dog out and your child is below the age of responsibility? I would think that a child cannot 'own' a dog in a legal sense, which leaves you or your wife as the owner. Looking at the legislation, it appears to be an absolute offence i.e. no need to prove intent or guilty knowledge. The circumstances alone would be enough to convict.
Every effort to secure a caution in the morning would prevent a court prosecution.
DancingDad
Okay.
So you are thinking of NG based on that you (wife) had taken all reasonable precautions?

Young Dog. So training would not have been complete and as with any untrained animal, the unexpected is far more likely to happen then with an older/trained dog.
Dog was locked in house. With a 4 year old and no adult supervision. Black mark there considering all the media hype we see when a dog mawls a youngster.
4 year old let the dog out. So what precautions had been taken to prevent that. Ah, yes, they had been left in house together unsupervised.
Dog had never jumped the fence before. Dogs jump fences every day. Unless you can show that there was very little expectation that the dog could scale the fence this is akin to saying that the bomb was safe because it had not exploded before.

May sound blunt but those are the sort of things that you have put forward and that you are asking a magistrate to consider. Against that it was your dog and that it was chasing livestock, which IMO has been an offence since man first domesticated animals. (Although what the modern day laws allow in the way of exemptions I do not know)
You may get a magistrate that is a dog lover (especially fond of little puppies) or you could get one that is a livestock owner and lost half their flock last year cos of someone letting their dog run amok.

Personally I'd be hoping for the caution or failing that, suited, booted and full of remorse while pleading Guilty and asking for mitigation to be taken into account. And including what steps had been taken to ensure that the same could not happen again. Like a new fence with razor wire topping it.
No reason IMO why that mitigation cannot include that there seems to have been some cock up between CPS and Police around issuing a caution that of course you would have taken and understood had been recommended but not actioned.
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