Monthly Archives: August 2016
Domestic violence cases are frequently before the court for trial. Domestic violence is defined as any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality.
The abuse can encompass, but is not limited to:
- psychological
- physical
- sexual
- financial
- emotional abuse.
In many cases a client may have unrealistic expectations as to whether a witness, who he or she might still be in a relationship with, will attend court to give evidence against them.
Witnesses will often respond to a Crown request for their attendance, and of course ultimately the prosecution can ask that the witness be forced to attend. Over the years the prosecution have resorted to the latter course of action more and more frequently, particularly in Crown Court cases. In some cases the evidence may permit the prosecution to proceed without the complainant.
If a client is sentenced for such an allegation, the court will take into account the seriousness of the assault, the stage at which admissions (if any are made), the wishes of the complainant (although these are not decisive) and the client’s attitude to the offence.
Particular sentencing considerations are set out here.
As a result, if a client is to embark upon a trial it is very important to them that they win. In a recent case dealt with by Mansfield Solicitor Tim Haines his client faced an allegation of assault. During an argument with his partner in the home it was said that he had pushed and shoved his partner, and taken hold of her. The allegation was aggravated by the fact that his young child was said to have been present.
Tim’s client had always maintained that the incident had not happened and it had been fabricated by the complainant to support orders being sought in the family court. The challenging of evidence in those terms may often be difficult, but in this case our client was helped by the fact that he was of previous good character.
This was important as it would be potential evidence that Tim’s client was less likely to have committed the offence and more likely to be telling the truth about what happened. Rather than simply rely on this Tim chose to call two character witnesses to give evidence to the court about his client’s character, usual demeanour and in particular how he conducted himself in his relationship.
The District Judge found this a difficult case as both the alleged victim and Tim’s client were credible witnesses. Applying the burden and standard of proof, and putting weight on our client’s good character, the Judge could not be sure that he had committed the offence and the client was found not guilty.
Tactical considerations that can only come from an experienced trial advocate such as Tim can often be key when deciding how to present a case before the courts. This is true whether the case is a trial or a sentencing hearing. You can be sure that Tim will be alive to all of the possible outcomes of the various strategies that can be adopted and give you the best advice in your particular case, as he did in this one.
Should you wish to discuss a case involving domestic violence with Tim then please make an appointment to see him at our Mansfield office by telephoning 01623 675816 or email him here.
Monthly Archives: August 2016
Senior Crown Court Litigator Laura Clarson prepared a case for a not guilty verdict. Her client faced two allegations of dwelling house burglary, aggravated vehicle taking and simple taking of a vehicle without the owners consent. If found guilty he would have received at least 3 years in prison.
Taken at face value, the evidence would appear extremely strong. The client had been arrested having been traced to where he was hiding behind a car by a police dog.
The police had recovered two watches stolen from the burglary. This had been committed less than an hour before the client’s arrest. They were found next to a gate that Laura’s client had jumped over during the pursuit
Keys from a vehicle taken was found under the car our client was hiding behind. When searched he was also in possession of a mask and gloves.
The defence of the case was made that much more difficult by the fact that our client had a substantial record of previous convictions for burglary offence and vehicle taking.
Laura’s client was passionate in his denials of the allegation. He maintained that a second person was responsible for the offending rather than him. Presentation of this defence was potentially hampered by the fact that he failed to give this explanation at the police station when represented by another firm of solicitors.
Her preparation, on her client’s instructions, began to show how the prosecution case was perhaps not as strong as it first looked and a not guilty verdict could be secured.
The following points were usefully made:
- A second male was present although police officers could not agree about that fact
- The dog handler could have traced the second male had pursuing officers mentioned him
- Although there were eye witnesses, identification parades did not take place as Laura’ client did not match the descriptions
- Defence established that a second male had had these allegations ‘taken into consideration’ when sentenced earlier
Although emotional about what he said were the lies of the police as to what had happened on that day, Laura’s client gave clear and compelling evidence as to his lack of involvement. His account was tested by the prosecutor in robust cross examination but our client did not waver.
After a little over five hours the jury returned with a not guilty verdict. Laura’s client was understandably relieved, and pleased that Laura, his barrister and the jury gave his account the weight that it deserved.
Our client was represented by counsel Dan Bishop from 7 Bedford Row who gave clear and helpful tactical advice on how to best present the case to the jury. Decisions were made has to how best to cross-examine the police officers (gently or robustly) and whether to call as a witness the person who had admitted the offences upon sentence. Ultimately, the right decisions were made.
This case demonstrates the benefits of instructing a firm with a specialist Crown Court department. Laura spends all of her working day preparing the most serious cases that come before the court. This may be for trials or sentence, but her experience means that she will give each case the attention to detail that it needs.
She will also be able to advise you as to the availability of legal aid. Information can be found here and here.
If you have a case that you wish to discuss with Laura please contact her at our Nottingham office by telephone 0115 9599550 or by email here.
Monthly Archives: August 2016
Advice given by Mansfield solicitor Tim Haines in a money laundering case was recently remarked upon by the District Judge passing sentence. Particularly, the Judge made it clear that he had been able to avoid imposing an immediate prison sentence because Tim’s client had accepted his sensible and proper advice on plea and offence category.
The case involved an allegation of money laundering with a value a little over £15 000. Money had come into our client’s account that were the result of fraudulent transfers from two different company accounts. The money had then been withdrawn and used to buy Euros which were then collected by a courier. A percentage of this money was said to have been retained as a reward.
Money laundering is viewed as serious by the courts as it often a crucial part of many serious criminal offences. Many cases are dealt with before the Crown Court and often result in a prison sentence of many months.
Tim’s client was the only person arrested as a result of the investigation. Others involved had gone to ground. The preparation of the case involved the careful consideration of the paper trail in the case. This showed that there was a strong case against our client. Upon receiving that advice she accepted she would be pleading guilty to the offence.
Thereafter, all efforts were directed to ensuring that the case was placed in the correct category of the sentencing guidelines which can be found here:
Money Laundering Sentencing Guidelines
Although the value placed the offending in a less serious category, the sentence would depend upon the level of involvement in the offence, or culpability.
For example, as the client had full control of the bank accounts, withdrew the money, converted it into Euros and arranged for its collection, and received a percentage for that service it could have been said that her involvement amounted to ‘medium culpability’ which would have meant that the case was likely to have been sent to the Crown Court for sentence, with a starting point of 18 months immediate custody.
Through careful preparation and considered advocacy, Tim was able to persuade the Judge that his client involvement was one of ‘lesser culpability’. This, in combination with the arguments put forward in mitigation, meant that the Judge was able to sentence her to a short suspended sentence with unpaid work and a small amount of compensation.
This type of case demonstrates the benefits of instructing Tim to deal with your case. His careful advice will always start with a detailed analysis of the case that you face, followed by realistic advice as to any strengths and weaknesses.
Tim will then spend the time necessary seeking your account of the incident, providing you full advice as to whether you have an arguable defence, and give you sensible advice as to the likely outcome of either a trial or sentence.
Should you wish to discuss your case with Tim then please make an appointment to see him at our Mansfield office by telephoning 01623 675816 or email him here.
Monthly Archives: August 2016
VHS Fletchers, as well as dealing with current criminal cases, also hold a contract with the Legal Aid Agency to provide advice on prison law matters and appeals. This means that the advice, assistance and representation that we are able to give does not cease at the conclusion of any current criminal case. We will be able to advise and assist in any joint enterprise appeals.
This is of importance to two clients that our prison law specialist Irene Tolley represented at trial in 2004, when working for Varley Hadley Siddall solicitors.
At the time the case was one said to have ‘made British legal history’ , with the prosecutor announcing that he did not know of any comparable case. The officer in the case described the prosecution as ‘unprecedented’, with the Crown Prosecution Service describing the case as ‘the first of its kind’.
On behalf of the clients Irene and counsel pursued appeals to the Court of Appeal and subsequently to the Criminal Cases Review Commission but without success.
Following legal developments earlier in the year set out below, Irene was in the process of locating the clients as they made contact with her.
On 18 February 2016 the Supreme Court delivered a landmark judgement in the case of R v Jogee.
This ‘re-stated’ the principles of criminal joint enterprise in murder trial’s. The court decided that for the last 30 years the interpretation of the law had been in error, ‘…equat[ing] foresight with an intention to assist, as a matter of law; the correct approach is to treat it as evidence of intent’.
The difference now is that a jury must be sure that a secondary party, a person who did not themselves carry out the fatal act, must now intend that the offence is carried out before they can be convicted of murder.
The Supreme Court were careful, however, to stress that the decision would not open the floodgates to 30 years of appeals on this issue:
‘…it does not follow that it will have been important on the facts to the outcome of the trial or to the safety of the conviction. Moreover, where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken…’
As a result, the pursuit of any appeal after such a period of time cannot simply rely upon a perceived ‘change of law’ in joint enterprise. Prospective appellants will have to demonstrate that as a result there has been ‘substantial injustice’ to the individual looking at the case as a whole.
Irene, along with original counsel, are taking these appeals forward, but there is much further work to do.
Should you wish to discuss a potential joint enterprise appeal with Irene, please contact her at the Nottingham office by letter or telephone 0115 9599550. Alternatively, she can be contacted by email here.
Irene is able to assist with other appeals and a range if prison law matters. Information about that can be found here.
UPDATE: Commentary from Andrew Wesley about the Jogee decision and joint enterprise can be found on the ITV website here.
Monthly Archives: August 2016
Nottingham Solicitor Advocate Phil Plant and senior Crown Court litigator Laura Clarson worked together to place a vulnerable client in the best possible position to achieve a constructive suspended sentence rather than immediate prison.
The odds were stacked against their client in this particular case, however. Our client was before Nottingham Crown Court facing an allegation of conspiracy to commit arson. She, along with her mother, had made an agreement to set fire to their home address with the hope of being re-housed by the local authority.
To make matters worse, she had separate proceedings before Lincoln Crown Court for taking prohibited articles, namely cannabis and mamba, into Lincoln prison.
Either offence on their own would usually attract a custodial sentence. The conspiracy was committed while on bail for the prison offence, and this aggravated the situation. Finally, she was also in breach of a further court order from 2015.
There were, of course, compelling reasons why our client would have become involved in such serious offending. Trouble had been brought to our client’s door through her involvement with an ex-partner. He had owed a debt, and in his absence attempts had been made to extract the money from our client.
As a result the attempt had been made to take the items into prison, but then damage had been caused to her and her mother’s address and threats had been made of more serious trouble to come.
The damage to their own home only came following reports of the crimes against them to the police. Unfortunately, in the absence of any firm evidence, the police had been unable to make arrests or protect the family. The conspiracy was then formed.
Understandably our client was distressed as to the potential outcomes of her case, including a prison sentence. It was extremely important that the time was taken to explain the strength of the evidence to her, including the benefit to her of a guilty plea if she had committed the offences, and how best her case could be prepared.
Upon taking instructions, Laura knew that it was often the case that the prosecution would not simply take a client’s word about threats received. Mitigation would have to be directed at achieving a suspended sentence. Through correspondence she made the prosecution investigate these facts with the police, who were able to confirm the background and the fact attempts had been made to seek police help prior to the arson.
The fact that the this background was accepted meant that at the sentencing hearing, when the client was represented by Phil, the Judge was able to hold back from an immediate prison sentence and instead impose a suspended sentence.
If you face proceedings before the Crown Court it is crucial that you seek the best representation available. Laura and Phil are part of a dedicated and specialist Crown Court litigation and advocacy team.
We will always give you the best advice on plea and then preparation for trial or sentence, including how best to fund your case.
If you wish to speak with one of the team please contact us at the office most convenient to you or email us here.
Monthly Archives: August 2016
Legal Aid is available for defending Crown Court proceedings. It will always be granted on the merits of the case, but is subject to a means test. The legal aid certificate can be granted with or without a contribution from your monthly income.
Even if you do not have to pay an income contribution you might have sufficient capital to mean that money is collected from that capital at the conclusion of the case. Although the monthly income level is set reasonably high, it can be that you will not qualify at all for Crown Court Legal Aid.
Bearing in mind the stress to you that defending proceedings will involve, we recognise that it is important that your defence is affordable. As a result we will provide you with all of the alternatives available to you in the funding of your case.
An application for legal aid will have several benefits:
- if you win your case any contributions you make will be returned to you
- if you are not entitled to legal aid and win your case then you will be able to apply for a proportion of your fees to be repaid from central funds
- it is likely to make your representation by litigator and advocate more affordable, particularly if the case involves the instruction of expert witnesses
The first step will be to submit an application for legal aid, having taken all of the information necessary for the legal aid means test to be undertaken. Documentary evidence in support of your income and expenditure will need to be submitted to the Legal Aid Agency (LAA) in due course, but the initial decision will be made upon the basis of the fully completed form.
The initial response from the LAA will indicate whether or not a contribution will be required from your income. Unfortunately, there will be no indication as to the level of any capital contribution. This will be calculated at the conclusion of your case if you plead or are found guilty.
When you receive notification of any income contribution it might be that it may appear difficult to afford. This is because the expenditure that is offset against your income is very limited. At this stage we will help you decide whether you ought to accept the offer of legal aid.
We will be able to calculate the likely cost of the preparation and the advocacy involved in your case and in many cases will be able to undertake the work on a private basis, but with fees limited to the amount that we would recover from the Legal Aid Agency.
This might be particularly attractive where you know that you will be pleading guilty so will not be entitled to recover costs, your monthly contribution is high and the case is likely to take several months to conclude.
It might be less helpful in a denied matter involving a substantial amount of work and a lengthy trial.
We will take the time to discuss all of your options with you to allow you to make the right decision as to how best to fund your case. If you have a case you wish to discuss then please contact your nearest office or email us here.
Monthly Archives: August 2016
Derby Solicitor Advocate William Bennett recently dealt with a client facing an emotive offence of theft from her elderly mother who was a resident in a care home.
The allegation was aggravated by the fact that it was said to have taken place over a period of many months and William’s client was in a position of trust in relation to her mother’s money.
Although William’s client accepted some thefts, she did not accept the full amount of £16 000 alleged by the prosecution. She was remorseful, and also upset which made it difficult to obtain the detailed instructions needed to set out clearly to the prosecution the extent of the admitted offending.
Over 160 transactions had to be analysed and an explanation sought from our client. She had to be pressed to attempt to provide an explanation for each and every item of expenditure in order that the prosecution could be persuaded that she ought to be sentenced on the basis of far more limited dishonesty.
The sentencing guidelines that would be applied in the case can be found here – General Theft Guidelines. The offending fell into the category of highest culpability, Whether the value was £16000 or £6000 would have a very real effect on likely sentence, the guidelines suggesting a difference of a year between the differing starting points.
Through diligent preparation and negotiation with the Crown Prosecution Service William was able to persuade the reviewing lawyer that it would be appropriate for the court to proceed on the basis set out by his client. Again, the fact that the matter proceeded by agreement was important for the client as she could have faced a longer sentence had she argued over the value of the thefts and lost. As a result William was able to eliminate an element of risk.
Although a Derby solicitor, William was able to offer continuity of representation when, owing to the real risk of a custodial sentence, the case was transferred to Birmingham Crown Court as this court was more suited to coping with the client’s own poor physical health if she had to go to prison.
Ultimately William’s sensitive and careful mitigation persuaded the court that an immediate prison sentence could be avoided. Instead, his client was dealt with by was of a suspended sentence including requirements of alcohol treatment and a curfew as a direct alternative to custody.
Understandably, a client who would have been very vulnerable herself within a custodial setting, was very pleased with the final outcome. She was placed in a position where she had an opportunity to rebuild the damage that she had inflicted on her own and her mother’s life.
William’s client had the benefit of legal aid covering her representation before the Magistrates’ and Crown Court, and the preparation needed in her case to secure this result, which also ensured that doctors’ fees were paid to make sure that medical evidence was before the sentencing court.
We will always advise you on the most cost effective way of funding your case. If you wish to discuss a case with Derby Solicitor William Bennett or one of our other lawyers please contact us at your nearest office. Alternatively you can email William directly here.
Monthly Archives: August 2016
Our Mansfield solicitors received individual items of positive feedback from clients they have represented within the last week.
Melanie Hoffman assisted a client at trial who was charged with Assault Occasioning Actual bodily harm. The allegation arose out of a long-standing neighbour dispute, and was said to have been a prolonged assault resulting in a fracture.
The trial involved cross-examination of three prosecution witnesses, all of whom gave evidence that Mel’s client had assaulted the complainant in various ways. Careful preparation meant that Mel was able to highlight all of the inconsistencies between these witnesses. Mel was also able to highlight to the Magistrates and the prosecutor that the injuries were not supportive of a charge of causing Actual Bodily Harm.
As a result, although the client was found guilty of an allegation of common assault, he was found not guilty of the more serious charge. Despite having had a trial, Melanie put forward mitigation that allowed the Magistrates to deal with her client by way of a financial penalty only.
Her client was very pleased as he provided a prompt and full testimonial , stating that Mel was ‘outstanding in Court today’. He went on to say that of other Mansfield solicitors she was ‘the best solicitor I have ever come across’, maintaining that she was ‘tremendous’, fighting for him in court and secured ‘the best result’.
Separately, solicitor Tim Haines represented a client for a drink drive charge. She was 3 1/2 times the legal limit to drive, and her driving resulted in a road traffic accident with a stationary car, leading to her own car being written off. Tim’s client had never appeared in court before.
Guidance for sentence in such cases is now easy to find. The sentencing guidelines can be found here. Tim’s client had researched the position and was understandably worried about the likelihood of a prison sentence.
Tim spent the time with the client that was needed to ensure she provided him with all of the mitigation relevant to her case. It became clear that she was particularly vulnerable, and the offence reflected a culmination of various malign factors in her life.
Tim was able to ensure that the Magistrates fully understood the careful mitigation he put forward, and how if affected culpability and the likelihood of re-offending. In the event, rather than receive a starting point sentence of 12 weeks’ custody, the court dealt with Tim’s client by way of a community order with a rehabilitation element only. The inevitable disqualification could be reduced if the client undertook the relevant course.
Another prompt testimonial reflects well on Tim’s people skills as well as his advocacy – ‘I wanted to thank you for your support at court this morning. I realise you spend a lot of time in that environment but for me it was a first and last. You helped me through an extremely nerve-racking situation with professionalism and compassion and I wouldn’t hesitate to recommend you to any other person I know should they find themselves in a similar situation. Thank you again.’
Neither client was financially eligible for Magistrates’ Court legal aid. Both were able, however, to afford to be represented by our Mansfield solicitors who made a difference to their cases by way of an agreed and affordable fixed fee.
Options for funding your case can be found here.
If you wish advice and representation for any criminal matter please contact your nearest office. Mel can be contacted by email here and Tim can be contacted here.
Monthly Archives: August 2016
Crown Prosecution Service – CPS – allegations involving charges where, upon conviction, a client is expected to receive a prison sentence of more than six months are regularly allocated to the Crown Court to be dealt with. Bearing in mind the pressures on the court system this can lead to a long delay between charge and trial, on top of any delay between arrest and first appearance at the Magistrates’ Court.
We recognise that these delays can be a worry to all of our clients, but we try to mitigate this by showing that we are using this time to effectively prepare the defence case. Our firm has a team of specialist Crown Court Litigators who deal with these serious cases.
Early preparation will always involve taking a client’s full instructions on the evidence. It may involve taking statements from additional witnesses, seeking character evidence or pursuing expert reports.
A recent case shows how it may be unwise to take prosecution expert evidence at face value, particularly when it is in the form of medical ‘evidence’ in an abbreviated prosecution file.
Ruth Campbell, a senior Crown Court litigator based in our Chesterfield Office, represented a client accused of assaulting his partner. The allegation was one of s20 Offences Against the Person Act 1864, or grievous boldily harm.
The alleged victim claimed that she had suffered a broken arm as a result of an unlawful assault. Ruth’s client maintained that he had only ever acted in self-defence. Instead he maintained that he himself had been the victim of an attack by his partner. He claimed that she had lunged at him with a knife and he had twisted her arm to protect himself. He did not believe that his actions could have caused her to suffer a broken arm.
As a result, and at an early stage, it was suggested to the prosecution that the injury was not consistent with the description of the incident as set out by the complainant. This contention was set out in the client’s defence statement leading the Judge, when our client entered a not guilty plea, to request that the CPS serve additional medical evidence to clarify the position.
When these enquiries were concluded the additional evidence obtained demonstrated that the injury could not have been caused as alleged and showed that the complainant was not telling the truth. As this was evidence obtained by the CPS, it was accepted that the prosecution had no option but to drop the charge and a formal not guilty verdict was entered.
Experience meant that Ruth was able to listen to the client’s instructions, consider the evidence and know that the injury did not appear to support the facts as set out by the complainant. A potentially serious injury is not decisive evidence of a client’s guilt.
At VHS Fletchers your case will be dealt with by an appropriately qualified lawyer who will respect your instructions and prepare your case accordingly.
This client had the additional benefit of receiving legal aid which means that ultimately his case was free of charge to him. We will always investigate the most cost effective way for you to fight your case.
If you have any criminal matter which you wish to discuss with one of our team please contact your nearest office. If you wish to contact Ruth directly then telephone her on 01246 283000 or email her.
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