Monthly Archives: January 2018
A great many people are subject to restraining orders made under the Protection From Harassment Act 1997. The orders are designed to protect people from harassment and are commonly made in so-called ‘domestic violence’ cases. Advice is not given by the court at the time about how to discharge a restraining order.
Of course, life moves on. It is quite common for old relationships to become re-established. If this should happen before a successful application is made to discharge a restraining order, the person subject to the order is at serious risk of committing a criminal offence. The offence of breaching a restraining order carries a maximum sentence of 5 years imprisonment.
In other cases a restraining order may have, for example, geographic restrictions that are no longer appropriate.
Whatever the reason, there is a procedure to vary or discharge the order.
Is legal aid available to discharge a restraining order?
Legal aid may be available to a person subject to the order, dependant on a full assessment.
We also offer a competitively priced private client service.
Who makes the application to discharge the order?
The Act says that:
‘The prosecutor, the defendant or any other person mentioned in the order may apply to the court which made the order for it to be varied or discharged by a further order.’
This is important as it allows the person who is protected by the order to support or even initiate, any application to vary or discharge.
What are the criteria for discharge of the order?
There aren’t any statutory criteria for the court to apply, but case law sets out the following approach:
‘The only question on an application or further application, under section 5(4) of the Protection from Harassment Act 1997, to discharge [or vary] a restraining order made under that section, was whether something had changed so that the continuance of the order was neither necessary nor appropriate.’
It follows therefore that there really must be a compelling case to persuade the court to change its mind based on a change in circumstances.
Where the person protected by the order supports the discharge, the application is much stronger. In this context the Court of Appeal has observed:
‘This is not a jurisdiction which can be used to prevent an adult from deciding who she wants to live with. Although any person considering this case would consider that [HJ] is at serious risk of violence from the appellant, she has the right to live with him if she chooses. It is to be hoped that she is genuinely aware of the risk she is running in doing that, but ultimately she is an adult and free to take those decisions for herself. The law does not presently permit the criminal court to act to protect victims of domestic violence against the consequences of decisions of this kind which they freely make. Because of our level of concern for her safety, we caused the police to contact her very recently before this case was heard so that her wishes could be ascertained. She told them unambiguously that she wants this order revoked.’
How we can assist with your application
Firstly we will take your instructions and advise you as to the chances of a successful variation of discharge of your restraining order.
If the application is to be made, we will meticulously prepare an evidence bundle and submissions for the court and present these on your behalf.
If we represented you in the original hearing then we will already have the information relating to your case. If another firm of solicitors dealt with your case then we will be able to contact them to seek the papers relating to that case.
Please contact the office most convenient to you. Alternatively you can use the contact form below.
Contact
Monthly Archives: January 2018
On 31st January 2018, regulations bring into force sections of The Criminal Finances Act 2017. These deal with unexplained wealth orders as well as various other related provisions. They are intended to be used with existing civil recovery powers.
The purpose of the unexplained wealth orders is to allow for certain people who obtain property, which would ordinarily be beyond their obvious means, to be required to prove how they lawfully acquired it. This is, in effect, a reverse of the usual burden of proof where the prosecution must make a court sure of wrong doing.
Law enforcement agencies often have reasonable grounds to suspect that identified assets of such persons are the proceeds of serious crime. However, they are often unable to freeze or recover the assets under provisions in the Proceeds of Crime Act due to an inability to obtain evidence (often due to the inability to rely on full cooperation from other jurisdictions to obtain evidence).
Who can apply for unexplained wealth orders?
The authorities which may apply for such an order are:
- The National Crime Agency
- HM Revenue and Customs
- The Financial Conduct Authority
- The Director of the Serious Fraud Office
- The Director of Public Prosecutions
What happens if you are subject to an order?
If you are subjected to an order of this kind, you must provide a statement which does the following:
- Sets out the nature and extent of your interest in the property
- Explains how you obtained the property, particularly how any costs involved were met
- Provides details of any settlement if the property is held by trustees
- Sets out any other information about the property specified in the order
In addition to a statement, it may be necessary to supply documents connected to the property as required by the order.
What does the High Court need to be satisfied of?
Before it can make an order, the High Court must be satisfied that the following criteria are met:
- There is reasonable cause to believe that the person in question holds the property and that it is worth over £50 000;
- There are reasonable grounds for suspecting that this person’s known income (from lawful sources) would not be enough to obtain the property; and,
- The person in question is a politically exposed person (see definition below) or there are reasonable grounds for suspecting that they are or have been involved in a serious crime or someone connected to this person is or has been so involved.
A politically exposed person (PEP) is someone who is or has been entrusted with prominent public functions by an international organisation, a State other than the UK or another EEA State, a family member of such a person, a close associate or someone connected to them in another way.
Are any criminal offences created?
It is a criminal offence to knowingly or recklessly make a statement that is false or misleading in response to an unexplained wealth order. Doing so can result in two years’ imprisonment and/or a fine. This offence can be tried in either the Magistrates’ Court or the Crown Court.
What if I fail to provide the information?
Failing to provide the information, in full or part, may prejudice any civil forfeiture proceedings.
In some cases, an unexplained wealth order will be accompanied by an interim freezing order. This prohibits the respondent to the order and any other person with an interest in the property from in any way dealing with the property.
Property held outside this country
Where the property is thought to be in a country outside the UK, the Secretary of State may forward a request for assistance to the government of the receiving county. This can be a request to prevent anyone in that country from dealing with the relevant property and provide assistance in managing it as required.
Contact VHS Fletchers for specialist legal advice
To discuss unexplained wealth orders, or any other matter, please contact confiscation law solicitor Julia Haywood on 0115 9599550 at our Nottingham office. Alternatively use the contact form below for prompt expert advice.
Contact
Monthly Archives: January 2018
In criminal law, we talk a lot about ‘character’. This is, however, mainly in the context of ‘bad character’ rather than good character. It is often the case that the prosecution will try to put previous convictions before a jury to persuade them of the defendant’s guilt. After all, the prosecution will say, if he’s done it before, he is more likely to have committed this crime too.
Of course, not all defendant’s facing criminal trial will have previous convictions. In those circumstances the issue of ‘good character’ is likely to be important.
This will, of course, involve a reversal of the prosecution argument. In cases where a person is of good character it will be said, therefore, that they are less likely to have committed the crime charged.
In fact the situation is much more complicated than that. As a result we believe it is an aspect of case preparation that can often be overlooked. This will be to the detriment of the person of good character standing trial.
What is the purpose of establishing good character?
For centuries, it has been accepted that evidence of the accused’s good character is admissible in criminal trials. In more recent years, the courts have accepted that evidence of good character may be admissible:
- to bolster the accused’s credibility; and,
- as relevant to the likelihood of guilt.
How is good character established?
In most cases, good character is simply a matter of fact. If a person has no previous convictions they will by definition be of good character.
But even then, a person may be deprived, at least in part, of their good character status depending on the nature of any evidence they have given.
Similarly, although a defendant may not start off with good character they may be able nonetheless to obtain a good character direction. This is often referred to as ‘qualified or effective good character’. A common scenario is where any convictions are either so old or so irrelevant to the matter before the court, that it would be unjust to take them into account.
Should character witnesses be called?
An essential part of establishing good character will be to consider carefully whether character witnesses should be called on your behalf. These will be people who know a defendant well and who will speak positively about them.
In choosing character witnesses, it is preferable to try and find people who will be highly credible themselves in the eyes of the court or jury. They ought to be people who would not be willing to lie about a person’s character and qualities simply due to allegiance to that person.
Do I have to do anything?
It is critical that good character or qualified good character is not overlooked during case preparation. It is for the defence to formally establish good character and ensure that the issue is properly before the court for consideration.
Good character and appeals
If defence advocates do not take a point on the character directions at trial and/or they agree with the judge’s proposed directions which are then given, these are good indications that nothing was amiss. This means that attempting to cure any defect on appeal is unlikely to meet with success.
The Court of Appeal has held:
“…as a matter of good practice, if not a rule, defendants should put the court on notice as early as possible that character and character directions are an issue that may need to be resolved. The judge can then decide whether a good character direction would be given and if so the precise terms. This discussion should take place before the evidence is adduced. This has advantages for the court and for the parties: the defence will be better informed before the decision is made whether to adduce the evidence, the Crown can conduct any necessary checks and the judge will have the fullest possible information upon which to rule. The judge should then ensure that the directions given accord precisely with their ruling.”
What is the content of a ‘good character’ direction?
The actual direction to the court or jury depends on the exact circumstances of the case, but this is a typical full direction:
‘You have heard that the defendant is a man in his middle years with no previous convictions. Good character is not a defence to the charges but it is relevant to your consideration of the case in two ways. First, the defendant has given evidence. His good character is a positive feature of the defendant which you should take into account when considering whether you accept what he told you. Secondly, the fact that the defendant has not offended in the past may make it less likely that he acted as is now alleged against him.
It has been submitted on behalf of the defendant that for the first time in his life he has been accused of a crime of dishonestly. He is not the sort of man who would be likely to cast his good character aside in this way. That is a matter to which you should pay particular attention.
However, what weight should be given to the defendant’s good character and the extent to which it assists on the facts of this particular case are for you to decide. In making that assessment, you may take account of everything you have heard about him.’
In the magistrates’ court, the defence advocate should ensure that the legal adviser provide the magistrates’ with the correct advice on this direction.
How we can assist as criminal trial specialists
We believe in proactive defence work. This means that we do not merely respond to the prosecution case. At the same time we are taking all of the positive steps possible to build a strong case for your defence.
An example of a Magistrates’ court trial where good character was important can be found here.
Considerations about character, both good and bad, will be just one aspect of this case preparation, although it may be a significant one.
Any application for legal aid is likely to be assisted where a conviction following trial will deprive a defendant of their good character.
Alternatively you can use the contact form below.
Contact
Monthly Archives: January 2018
Confiscation law specialist Julia Haywood recently took over a client’s case post conviction. Our client was involved in confiscation proceedings involving a benefit figure of over a million pounds. He was not happy with the advice and representation he was receiving once the main part of the case was over.
It is often our experience that client’s may feel that their interests are not being properly protected after sentence, despite the fact that it may be that the outcome of any confiscation proceedings could be a more substantial punishment than the sentence for the offence.
In this case, our client had been referred on to this firm on recommendation from an existing client, the client citing out ‘Good reputation on Class A cases’ as one of the reasons why he wished to transfer to this firm.
The preparation of such cases are often complicated where our client is serving a sentence of imprisonment. For example, here. he was initially at HMP Wandsworth but later transferred to HMP Highpoint North.
The application to transfer legal aid to us was not resisted, and the first task Julia undertook was to seek to amend the timetable to permit proper preparation of our client’s case.
Background to the confiscation proceedings
The background to the case was a conviction for conspiracy to supply drugs of both Class A and Class B. There had been covert surveillance at agricultural premises, and following a raid cocaine was found that was initially valued at £1.5 million. The cocaine had a total weight of 22 kg, packaged in individual blocks. Our client was one of four co-accused. At the point that we took over conduct of the case, one of the co-accused had been subject to a confiscation order with a benefit figure specified of £1 060 280.
Unfortunately, our client was very unclear as to what he had pleaded guilty to and on what basis. It appears that he had followed advice that inevitably resulted in a significant loss of credit for his plea. He received advice in writing that he had pleaded guilty to possession with intent to supply a smaller amount of Class A drug when he had in fact pleaded to the conspiracy on a full facts basis. His case had been listed for a Newton Hearing, although this was later abandoned for reasons that were not immediately apparent. Our client was serving a sentence of 11 years.
In order to ensure that the case was fully prepared Julia visited her client six times prior to the final confiscation hearing. Although some work had been undertaken on his behalf, in effect she had to start the preparation of his case from the very beginning. Assertions had been made in documents submitted on our client’s behalf that had no legal basis.
Significant reduction of the benefit figure
The prosecution were claiming that our client’s benefit from his offending was £1.1m. Once Julia had taken the opportunity to review all of the evidence in the case she was able to engage in negotiation. Agreement was reached over a much reduced figure of £396K.
This reduction of £700K was likely to be extremely significant for our client over the longer term. He did not have assets sufficient to pay the benefit figure in full. As a result it would be open to the prosecution to bring the matter back to court each time it was discovered he had assets to direct that more money be directed to paying off the benefit figure. As a result it was in his interests for the benefit figure to be as small as possible.
Extensive realisable assets
The position in relation to our clients realisable assets was also complex. He had been self-employed. Preparation of such a case where a person is in prison is always difficult. This was particularly true as our client had been remanded from the time of charge.
He had significant assets that would be counted in the calculation of the ‘available amount’. He owned his own home and three vehicles as well as a large amount of specialist camera equipment. His partner, however, had left him following his arrest and taken all of his assets not seized by the police.
The prosecution was contending that these were tainted gifts although our client would argue otherwise. Julia was able to locate the ex-partner who attended court at the final hearing to confess what she had done!
There were further complicating issues involving substantial loans of many thousands of pounds to our client by his father. Julia was able to put together a comprehensive history of where her client’s money had come from. Understandably this was not an easy task.
The value of the Realisable assets as an ‘available amount’ was finally agreed at £136K. Julia identified a large sum of cash that had been seized by the police. This had not been counted in the initial prosecution calculation.
Although in this case, our client lost what he had, there was a reasonable opportunity to rebuild his fortunes upon his release from prison.
Instruct an expert on confiscation proceedings
The outcome of any case is important. In cases involving confiscation proceedings there will not only be a sentence to serve, but the potential for the additional punishment of loss of assets.
If you wish to discuss any aspect of your case then please contact Nottingham confiscation solicitor Julia Haywood on 0115 9599550. Alternatively, use the contact form below.
Contact
Monthly Archives: January 2018
This week from January 2018 provides a perfect illustration of the work undertaken by accredited police station representative Rob Lowe out of our busy Chesterfield office as he travels to provide expert police station advice.
Sunday
The week started with a visit to Chesterfield Police Station just after 
midnight on Sunday. The the police decided this would be the ideal time to interview to a client who had asked for the duty solicitor.
Luckily, Rob was offered plenty of strong coffee which was very welcome, because he was there until after two in the morning. He managed to get a few hours sleep before I was required back for 10 a.m. on the Sunday morning to provide a further three clients with police station advice in Chesterfield. Again, these had asked for the duty solicitor.
Unfortunately, he was back home in time to see Arsenal lose!
Monday
Monday started with a further visit to Chesterfield police station to represent a client who was answering police bail. Although this was a second visit to provide free legal advice and representation to our client, there is no additional fee payable to us under the legal aid scheme.
Immediately after this, Rob represented a client who had been asked to attend the police station for a voluntary interview. He had the good sense to have notified us the previous week that he would be 
attending the police station and would wish free representation under the legal aid scheme.
After dealing with that case, Rob got into his car and drove all the way up to Liverpool. He met his client at the city centre police station at 6pm. Again, he was attending voluntarily and had earlier informed Rob that the police wanted to interview him.
After that interview was completed, and the client had gone home, Rob wandered into the city centre for a bite to eat before travelling home through weather that was variously rain hail and then snow. He managed to be tucked up in bed by 11 p.m.
Tuesday
Tuesday began with a trip to Mexborough police station. This was to provide free and independent legal advice to a client who had 
attended for a voluntary interview. Rob attended by prior arrangement, the client having contacted us in advance.
Rob was back in Chesterfield by lunchtime to represent another client at the Chesterfield police station. Again, this client had attended for a voluntary interview.
After concluding advice in that case , Rob went down into the custody suite to look after a client who had been to Court in the morning and had been represented by a colleague. He was unfortunately arrested for further offences when he left Court, and he asked for VHS Fletchers at the police station to provide advice and representation.
Wednesday
It was the firms turn to be duty solicitor again on Wednesday. Rob started the day by representing a client who had asked for the duty solicitor at Chesterfield Police Station.
A colleague then told Rob that a further client, who had been referred to us by a friend of his, was coming to the police station at 12 noon for a voluntary interview. He was met by Rob at that time and advice was provided accordingly.
Another case was in the cells also ready for interview at 12 noon, so a colleague was drafted in to provide advice in that case so that there was no delay to the interview for that client.
Once the voluntary interview was finished, Rob made his way over to Ilkeston police station to act as an agent for a firm of solicitors in London. They had a client who was attending for a voluntary interview but were unable to make the journey up to Derbyshire. Rob was was back home for 7:30p.m. for another late tea.
Thursday
Thursday started early due to the need to provide advice at Sheffield City Council offices. Rob represented a client who was being interviewed under caution for an allegation relating to improper use of a blue badge.
Rob then made his way back to Chesterfield Police Station to look after a client in custody who had been arrested and asked for representation from VHS Fletchers.
Rob made it home on time for a change, although this period of calm did not last long. He chose to assist a colleague who was on call by providing advice and assistance to a client who was being interviewed at Chesterfield police station.
Friday
Rob was not required at the police station on Friday. This provided a welcome opportunity to ensure that all of his paperwork was up to date from the week’s police station attendances.
Saturday
On the Saturday, Rob rested. Within the last seven days, Rob had provided free and independent legal advice to sixteen different clients.
In January alone Rob has attended ten different police stations in January – as well as Chesterfield, Rob has visited
- Grantham
- Clay Cross
- Ripley
- Hucknall
- Mansfield
- Eastwood
- Liverpool
- Mexborough
- Ilkeston
and one council office. The list will no doubt be even longer by the end of the month.
Contact us for free and independent police station advice
As we hold a legal aid contract we are able to provide our clients with free and independent legal advice when they are interviewed 
by the police. This remains the case whether a suspect is a volunteer or under arrest, whether the interview is in a police station or at another place such as their home.
Police interviews are important. What a suspect says or doesn’t say can help in the decision as to whether court proceedings should follow an interview. As a result it is important that a suspect seek police station advice before answering questions. Other reasons to seek legal advice can be found here. We can help you decide if, and how, you should answer police questions.
Rob can be contacted at our Chesterfield office. Details of all of our offices can be found here. All of our telephone numbers are answered 24 hours a day, 7 days a week to ensure that you receive our expert police station advice when you require it.
Alternatively you can use the contact form below.
Contact
Monthly Archives: January 2018
In many cases involving confiscation proceedings, the conversation in conference between solicitor and client may go as follows:
Client: ‘What am I looking at?’
Solicitor: ‘Around 12-15 months, suspended if you are very lucky.’
Client: ‘Oh, I can live with that!’
Solicitor: ‘But there is something else?’
Client: ‘What?’
Solicitor: ‘You are likely to lose your money and your car and have to sell your house.’
What are confiscation proceedings?
At its most simple it is the process by which those convicted of particular crimes are deprived of their benefit from those crimes.
So, for example, a particular client might steal £20,000 from her employer and spends it on a luxury holiday and new electrical items.
The proceeds of that crime is £20,000. This is her ‘benefit’ from the crime. She can expect a confiscation order to be made in that sum.
Are confiscation proceedings fair?
Although the process seems straightforward and fair in confiscation proceedings such as the one above the situation is more complicated than that. For example, the the £20,000 from the confiscation order above will not go to the employer. Instead it will go to the state.
The court may also, however, make a compensation order in the sum of £20,000 to repay the employer for their loss.
So, Jill will have to pay two lots of £20 000, a total of £40 000.
Quite possibly if she has the assets.
The potential for unfairness in confiscation proceedings
The situation can be a whole lot worse for some defendants.
For example, a client might steal a Porsche worth £130,000. He is caught a few hours later by the police. The the car is recovered undamaged and it is returned to its owner.
The ‘benefit’ in his case is £130,000 (the value of the car). This is the case even though the car has been returned to its owner within hours.
Examples from real confiscation cases
The examples above are all from real confiscation proceedings. While the results outlined do not always follow, the problem for defendants is that confiscation proceedings are ‘draconian and intended to be draconian’.
Certain convictions trigger what are known as the ‘lifestyle provisions’. This means that the finances going back many years will be subject to investigation for those convicted of a relevant offence. Unless a defendant can establish that the income was lawfully obtained, any unexplained monies will be at risk of being added to the ‘benefit’ figure.
Should you care if you don’t have any assets?
The benefit figure will still be determined even for defendant’s who don’t have any money or other property. If, for example, they come into some money at a later date the prosecution can ask the court for that money. This might include an inheritance, a pension lump sum or equity in a property that did not exist when the original order was made.
Any property of value can be seized in order to satisfy a confiscation order, and if the court believes that you can pay the order, and you fail to do so, you can be sent to prison in default.
The process can be very complicated
It is in very many cases. This , and we haven’t even mentioned gifts, hidden assets, corporate veils or Article 1 of the First Protocol of the European Convention of Human Rights.
The real punishment felt by an offender may not be the headline sentence but instead the financial penalty that flows from a confiscation order.
The rules are incredibly complicated. We will often find fundamental errors and assumptions being made by financial investigators. Basic errors can lead to incorrect calculations amounting to many tens of thousands of pounds.
In some cases, we can argue that the making of a confiscation order is so disproportionate that to do so would be unlawful.
As a result, before entrusting your case to any other solicitor you will want to ensure that they are up to speed not only on the basics of the offence with which you have been charged, but also in relation to the confiscation proceedings that are likely to flow following conviction.
Contact a specialist in confiscation proceedings
If you wish expert advice in relation to confiscation proceedings then please contact criminal solicitor Julia Haywood based at our Nottingham office. She provides nationwide advice and representation in relation to such cases.
Please call her on 0115 9599550 or use the contact form below.
Alternatively she can be contacted by letter at our Nottingham office.
Contact
Monthly Archives: January 2018
One of the most serious offences that can come before a court is ‘perverting the course of justice’, this is because it strikes at the very heart of the justice system. Such offending includes taking points for someone else.
Due to its seriousness, immediate custody almost always follows, yet there are a surprising number of people who commit this offence, thinking that they will easily get away with it.
“Offences of perverting the course of justice are intrinsically so serious that they will almost always attract an immediate custodial sentence unless there are exceptional circumstances justifying a different course” (R v Cronin (2017)).
Know a family member sitting on nine penalty points?
The scenario is a common one. One person in the family already has 9 points on their driving licence. A Notice of Intended Prosecution drops through the door in relation to a further road traffic offence.
The new road traffic offence on its own is likely to be relatively minor. It will only result in 3 penalty points and a modest fine. But, in this instance, due to the previous points on the licence, it may well result in a driving disqualification.
It may be that another family member with a clean licence thinks about taking points for someone else. The thought process might go – how easy would it be for another person to take the blame? Abe made to name a relative abroad. Who would possibly find out?
Of course, the first mistake here is the belief that you will not be caught taking points for someone else.
In reality, however, the police take a keen interest in these cases, and often it requires only a modicum of detective work to reveal the true offender.
The consequences of the offending
The consequences of taking points for someone else can be horrendous. The points follow, as does the disqualification which now becomes a reality with no realistic prospect of arguing exceptional hardship. Worst of all, two people are arrested, possibly in the early hours, in front of friends and family, maybe even young children.
And finally, a prison sentence follows. All to avoid a few penalty points.
Considering taking points for someone else?
The irony of the situation as set out above is that in many cases the driving disqualification could have been avoided. This is particularly true if early advice had been obtained from an experienced road traffic law practitioner.
Many otherwise decent hardworking people find themselves before the court through decisions made in panic. Before acting always seek advice.
Contact your nearest office to speak to one of our expert road traffic lawyers about your case.
Alternatively you the contact form below.
Contact
menu
