Monthly Archives: August 2018
While many will have spent the summer having holidays and day trips out with the family, our solicitors and police station representatives at our Chesterfield office have been taking their own day trips out of the town to provide legal advice and representation.
Unfortunately, these have not been to the seaside to enjoy an ice cream but to ensure that our clients who live local to Chesterfield receive advice and representation from lawyers that they know and trust. We often a nationwide service at both the police station and courts.
Countrywide legal advice and representation
The following are amongst the places recently visited by staff from our Chesterfield offices:
- Buxton Police Station
- Harrogate Police Station
- York Magistrates Court
- Manchester Magistrates Court
- Staines Magistrates Court
- Sheffield Magistrates’ Court
- Boston Magistrates Court
- Lincoln Crown Court
All of our Clients involved in the police investigations or cases before these courts had links to the Chesterfield area.
Their first priority was to have a solicitor local to them for ease of providing instructions rather than local to the police station or court they had to attend. They wished VHS Fletchers solicitors to deal with their case on the basis of previous dealings with our expert criminal solicitors or because they had been referred to us.
It was important to them to have a solicitor or accredited police station representative that they could trust.
When we were contacted by these clients we were only too happy to travel to provide them with the service that they wished. Our clients faced a range of offences, including
- assault
- theft
- criminal damage
- breach of court orders
Advice on your case under the legal aid scheme
As we have a contract with the government to permit us to provide expert legal advice and representation under the legal aid scheme. This means that our advice in the police station will always be free of charge to you in the police station.
There are many advantages to seeking advice in the police station and you can read about those here.
Many of our clients will be also be entitled to legal aid in the Magistrates’ Court. Nearly all will be eligible for legal aid to ensure representation for cases before the Crown Court.
You can read more about these types of legal aid here.
In the cases at the police station or the courts set out above, all of our clients had the benefit of free legal advice.
Instruct criminal defence solicitors who will go the extra mile for you
You may choose your solicitor by reputation. You might want to choose a solicitor with an office near to where you live, no matter where your case will be heard.
If you require the assistance of a firm of expert criminal defence solicitors who are more than happy to travel to provide you with nationwide criminal advice and representation, then look no further than VHS Fletchers.
We will go that extra mile (or if need be the hundreds of extra miles) needed to ensure that you get the best outcome possible.
Read more about the benefits of instructing our solicitors and litigators here.
You can contact our Chesterfield office for emergency advice day or night, 365 days a year on 01246 387999.
Alternatively you can use the form below.
Contact
Monthly Archives: August 2018
In recent years legislation has been enacted to ensure that crimes demonstrating a hostility towards certain groups of people are treated more seriously than before. If an offence is said to be racially aggravated, then you should expect a more significant sentence if convicted.
What does it mean for an offence to be racially aggravated?
An offence is racially aggravated if, at the time of the offence, you demonstrate toward the victim hostility based on his membership of a racial group or the offence is motivated by that hostility.
So, shouting racist abuse or making racist comments will make an offence racially aggravated. An offence will also be deemed racially aggravated where no comments are made but the offence is committed against someone because of their race.
Offences as a result of hostility toward a religious group, rather than due to race, are treated in the same way.
The fact that the victim may be indifferent to any abuse is irrelevant to whether the offence is racially aggravated.
It is also irrelevant if the reason for the offence was unrelated to race. For example, abusing a doorman because he wouldn’t let your friend into a club in combination with racist language will be sufficient.
How does it affect sentencing?
Each offence in law has a maximum sentence attached to it. For offences that are racially aggravated that maximum sentence is increased. For example, common assault carries six months imprisonment but the racially aggravated offence increases the maximum sentence to 2 years. For assault occasioning actual bodily harm the maximum sentence increases from 5 to 7 years.
The starting point is to consider the sentence that would have been imposed for the offence if it was not racially aggravated after consideration of all the other aggravating or mitigating factors in the case.
The sentence will then be increased to take account of the racial aggravation.
The extent of the increase in sentence will depend on the level of aggravation. The court will consider whether the offence was:
- planned
- part of a pattern of offending
- deliberately set up to be humiliating to the victim
- committed in the victim’s home
- repeated or prolonged
Account will also be taken of any distress caused to other persons or the wider community and whether the offender was a member of a group that promotes hostility.
Does it have to be charged as being racially aggravated?
Even if the offence isn’t specifically charged as being racially aggravated the circumstances can be treated as an aggravating feature in sentencing (O’Leary [2015] EWCA Crim 1306).
How can a criminal law specialist help?
As you can see such offending is treated seriously by the courts so it will be important that you seek early advice from a criminal law solicitor.
As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.
The advantages of such early advice legal advice can be found here.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case. Legal aid may well be available to fund your defence at court.
We have offices across the East Midlands. You can find your most convenient office here. Alternatively you can contact us using the form below.
Contact
Monthly Archives: August 2018
If you have provided a statement for the prosecution or for the defence you may be called as a witness in court to give evidence at the defendant’s trial.
Is there help available for me as a witness in court?
The Witness Service can provide assistance for any witness who has to attend court. This support can be both practical and emotional. They can provide information about the court process, show you the courtroom prior to the trial and assist with any expenses claim.
If you are a prosecution witness the Crown Prosecution Service witness support unit will be in touch with you and will provide contact details for witness support. If you are a defence witness the solicitor representing the defendant can provide you with support and also provide the contact details for the local witness service.
What happens at court?
When you attend as a witness in court, you can sit in a separate witness room rather than the general waiting area if you wish. You will be spoken to by the prosecution or defence lawyer, as appropriate, before the trial starts.
Will I be told what to say?
Whilst the lawyer will be able to provide you with information on trial procedure, layout of the court and the roles of those involved they cannot “coach” you on the evidence you will give as a witness in court. There are very strict rules about training witnesses because this could have a potentially negative effect on your evidence.
Can I read my statement?
You will be provided with a copy of your statement prior to the trial so that you can read through it before you give evidence. You will not usually be allowed to have it with you when you give evidence though. If the rules of evidence allow, you may be able to refer to your statement during evidence in order to refresh your memory.
Can I speak to any other witnesses?
If there are a number of witnesses, you will not be allowed to communicate with anyone who has given evidence while you are still waiting to do so.
If you are a defence witness, you should also not discuss anything about the trial with the defendant once the trial hearing has started.
The prosecution and defence lawyers are not allowed to discuss any evidence that has been given with you before you give your evidence.
What happens in court?
You will be called into court at the appropriate time and asked to swear on a holy book or affirm that you will tell the truth. You will then be asked questions by the prosecutor first if you are a prosecution witness and then by the defendant’s representative, or vice versa if you are a defence witness. If the defendant is not represented, you may be asked questions by a court appointed lawyer in his place if the court do not feel it is appropriate for him to ask you questions directly.
Once you have finished giving evidence you may be released from court or you can stay in the public gallery to watch the remainder of the trial.
I’m really worried, do I have to attend court?
If you think that you would benefit from “special measures” such as screening from the defendant or giving evidence from remote video link you should contact the prosecution, defence solicitor or court as appropriate.
A witness summons can be issued if the court is aware you do not want to go to court. This is something that you should speak to a solicitor about. If you fail to attend court in answer to a witness summons, then you may be arrested and brought to court.
Contact a criminal law specialist about being a witness in court
It may be that you have given a witness statement to the police and received a witness summons. Alternatively it might be that you are thinking of doing so but worried about the potential consequences.
You might have provided our office with a statement in respect of one of our clients, or are considering doing so and want to discuss this further.
Alternatively please use the contact form below.
Contact
Monthly Archives: August 2018
If you have found this article through an internet search then it is likely that you are one of many thousands of people who have been interviewed by the police under caution and then released under investigation.
It may be that you are having to search for an explanation because several weeks, or months, or even a year have passed and you have not heard anything from the police. You might not know or be confused about what will happen now that you have been released under investigation.
What does released under investigation mean?
If this has happened to you then it should mean that any police investigation into your alleged behaviour is still ongoing. The police should intend to notify you of the decision as to whether or not you will be prosecuted at some point in the future.
Often the effect of being released under investigation is that suspects will find that their lives are put on hold in many ways. It might be that the original allegation is a serious one so it is hard to get on with your life as normal. Your studies or career might be suffering while you are released under investigation due to a lack of knowledge of what is happening.
You might not know when property such as telephones or computers are to be returned. Potential witnesses might be waiting to see if they will be spoken to by the police.
Until you hear from the police it will be hard to put the matter to the back of your mind and impossible to forget about it, even where you know that you were not in the wrong.
Why am I not given a fixed date?
Previously suspects in a criminal investigation were likely to be released on bail to return to the police station so that a decision on charge or further interviews could take place.
Adverse publicity of cases where suspects were on bail for what could be years meant that the system was reviewed. The system created inconvenience where people would have to return to the police station many times only to find nothing was to happen and their bail was extended.
Police bail is now only used in a limited number of cases. The ability to keep suspects on police bail for long periods is now overseen by the courts.
Unfortunately, the change to the law on police bail has meant that it has been replaced with an equally unsatisfactory system where the police don’t even provide the milestones that bail dates would give to permit a review of the investigation.
Will the police keep you informed of developments?
For those who have been released under investigation it is unlikely to be enough to hope that the police are carrying out a thorough and effective investigation into the allegations
It is often impossible to tell whether any delay is due to the investigation or because other cases have been prioritised by the officer in your case.
Instruct a criminal law solicitor to represent your interests
Even if you were interviewed without a solicitor before you were released under investigation it is still not to late to contact us for our help.
We will keep in regular contact with the police to make sure that they are continuing to investigate your case. We will try and help you with a timetable for when certain steps will be taken and when the investigation is likely to conclude.
This may be of particular importance where the police are having items subject to forensic testing or having computers or mobile phones analysed. This can take a long time, particularly in complex or serious cases.
We can help negotiate the return of property to you if it is no longer relevant to the investigation.
Having us instructed at that stage will mean that where further interviews under caution are to take place we will be able to arrange them at a time convenient to you and your solicitor.
Can I change solicitors once I’ve been interviewed?
If you had the duty solicitor in your first interview then VHS Fletchers will be able to represent you in any subsequent interview under caution and that advice will remain free of charge to you under the legal aid scheme.
If, however, you had selected your own solicitor but now wish to change to VHS Fletchers then you may have to pay privately. Contact us and we will advise you as to that aspect of the case.
What should I do now?
With any criminal investigation it is always important to instruct a criminal solicitor from the outset. Our advice will be free of charge to you and we are entirely independent from the police.
The advantages of seeking legal advice in a police interview under caution can be found here.
Our police station solicitors and accredited representatives are on call 24 hours a day, 7 days a week from our offices across the East Midlands to provide you with advice when you most need it.
The contact details for your nearest office can be found here.
If you are arrested and do not have the time to contact us before you are taken to the police station ask the custody staff to phone VHS Fletchers.
You can also contact us by using the form below:
Contact
Monthly Archives: August 2018
If you are suspected of driving with excess alcohol in your body, you may be asked to provide a breath sample at the roadside. If that sample is positive, you are likely to be arrested and take to the police station. Failing to provide a breath specimen may mean you commit a separate offence.
Why do I have to provide another specimen at the police station?
Once at the police station you will be asked to provide an evidential sample of breath, the sample taken at the roadside is just a preliminary test to see if you are over the limit.
But I wasn’t over the limit or driving!
It is crucial to note that the fact you were not driving does not mean that you can refuse to provide a sample of breath, nor does it matter if you weren’t over the limit.
If the police have reasonable grounds to suspect that you were driving and you refuse, so failing to provide a breath specimen without good reason, you may be guilty of the offence.
What if I can’t provide a breath sample or the machine is broken?
If it is accepted, for whatever reason, that you cannot provide a breath sample, you will be asked to provide a sample of blood or urine.
Failure to provide the requested sample without good reason is an offence. Which sample is requested (blood or urine) is at the officer’s discretion and is not for you to choose.
What if I wasn’t warned?
You have to be warned that failing to provide a breath specimen or other sample is is an offence. If the warning is not given this may be a bar to conviction. As a result it is important that you seek early legal advice.
What is a refusal?
A straightforward refusal , or not trying hard enough constitutes a refusal and the offence of failing to provide a specimen of breath.
The taking of a sample cannot normally be delayed for you to be given legal advice although the police may allow that to happen.
Examples from cases where reasonable excuse has not been found include the following:
- a desire to see a doctor
- the illegality of detention
- mistake
- religious belief
- the sight of blood
- stress.
Is there a defence to failing to provide a breath specimen?
It is a defence to show that you had a reasonable excuse for failing to provide a breath specimen. A medical reason such as asthma or a genuine needle phobia could constitute a reasonable excuse.
What is the sentence on conviction?
A conviction will result in a mandatory driving disqualification of at least 12 months and is often in the region of 18 months or longer.
If you have a previous conviction in the last ten years for a drink or drug driving offence, the minimum disqualification will be three years.
As well as a driving ban you could be fined, given a community order or sentenced to up to 6 months in prison.
Will it different if you were not driving?
If you were suspected of being in charge of a vehicle before failing to provide a sample rather than driving, the penalty is different.
You may still be disqualified, but if the court chose not to, they would impose ten penalty points. The maximum prison sentence for this offence is three months.
Instruct an expert motoring law solicitor
As you can see, a conviction for failing to provide a breath specimen can have serious consequences and the law relating to defences can be complex.
As a result, if you are arrested or know that the police wish to speak to you about an offence then make sure you insist on your right to free and independent legal advice.
The advantages of such early advice legal advice can be found here.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case. Legal aid may well be available to fund your defence at court.
An example of how we have defended a case recently can be found here.
We made representations to have a prosecution discontinued in this case.
We have offices across the East Midlands. You can find your most convenient office here. Alternatively you can contact us using the form below.
Contact
Monthly Archives: August 2018
Clients of Newark criminal advocate Nikki Carlisle recently enjoyed a successful week following her representation including representation of a defendant under a section 38 appointment.
Section 38 Appointment in domestic violence allegations
Nikki was appointed by the court to represent a defendant under section 38 Youth Justice and Criminal Evidence Act 1999. This procedure protects vulnerable witnesses from questioning by those said to have perpetrated offences against them.
In this case the person represented by Nikki faced allegations of common assault, criminal damage and resisting arrest.
The limitations of a section 38 appointment mean that Nikki was only appointed in relation to the allegations of common assault and criminal damage. These were the matters that the vulnerable witness would be giving evidence about.
Although Nikki owed a duty to the defendant he was not her client in the usual understanding of that term. As a result, Nikki’s involvement was limited.
- she could only ask questions of the single witness in relation to the two charges
- she was unable to question the officer about the remaining charge
- she did not assist the defendant in giving his evidence in chief through questionin
- the defendant did not have the benefit of her giving a closing address to the Magistrates.
Nikki was able to question the witness in some detail, exposing inconsistencies and parts of her account that simply didn’t make sense. No doubt in great part due to this questioning under the section 38 appointment he was found not guilty of both of these allegations.
The defendant was convicted of the allegation of resisting his arrest. It is impossible to speculate whether Nikki’s representation could have made a difference to that verdict as well.
This defendant had been given the opportunity to come into the office to provide instruction so that an application for legal aid could have been submitted. He did not keep that appointment. As a result our involvement was limited.
Had he applied for and been granted Magistrates’ Court legal aid then Nikki’s representation would have been free of charge to him and she could have undertaken all of the work in court set out above, as well as any other preparation needed by the case.
Acquittal following trial for domestic violence allegations
Later in the week, Nikki then represented a client under the Magistrates’ Court legal aid scheme. He faced two allegations of assault and one of theft, all within a domestic setting.
Again, Nikki’s questioning exposed important inconsistencies in the accounts that she had given to the police and the court. The assaults that she described did not agree with the injuries that she said she had received.
The witness also changed her account between making her first complaint and giving evidence in court and no satisfactory explanation was forthcoming.
The case was further complicated by comments that Nikki’s client made while giving evidence that the prosecution argued amounting to an attack on the character of the witness. As a result an application was made to have previous convictions of our client taken into account when a decision was made as to his guilt. Nikki successfully argued that this evidence should not be admitted.
Following Nikki’s closing speech to the court her client was found not guilty of all three allegations.
Shop theft allegations discontinued prior to trial
Nikki was due to represent another client at trial under the legal aid scheme. It involved two allegations of shop-lifting. The issue in the case was whether there had been a lawful identification of her client as the person responsible for the offending.
She had raised in writing the alleged breaches of the code of conduct relating to identification. She repeated the requests for disclosure that would demonstrate that the identification was lawful or a concession that it was not.
In the event, she received a notice of discontinuance. If would perhaps be fair to infer that the the identification procedure had not been conducted in accordance with the law.
Of course, without the benefit of Nikki’s advice and representation the prosecution might not have been put on notice that there were irregularities with the identification procedure. The outcome for her client might have been very different.
Contact one of our criminal law specialists
If you are arrested or know that the police wish to speak to you about a criminal offence then make sure you insist on your right to free and independent legal advice.
The advantages of such early advice legal advice can be found here.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case. Legal aid may well be available to fund your defence at court.
We have offices across the East Midlands. You can find your most convenient office here. Alternatively you can contact us using the form below.
Monthly Archives: August 2018
Dame Vera Baird QC, the Police and Crime Commissioner for Northumberland, has once more sought to bring issues of the prosecution of cases of domestic violence to the fore.
She has commissioned and published a report in which she denounces defendants who plead not guilty in cases alleging charges of domestic violence as ‘gaming the system’ in order to have cases dropped.
Magistrates refusal to grant CPS adjournment
The report maintains that defendants are using the period between plea and trial to intimidate partners into failing to attend court. Once a witness doesn’t attend, it is claimed that the courts are all too quick to refuse adjournment requests, leaving the prosecution with no alternative but to offer no evidence, resulting in a not guilty verdict.
In 13 cases out 32 observed at one court centre, Magistrates refused an adjournment when the complainant failed to attend. As a result, the cases were dismissed despite arguments to the contrary from the CPS.
Late change of plea
In 21 cases at one court centre, defendants entered a not-guilty plea and asked for a trial. On the various dates fixed, the observers noticed, 12 of them pleaded guilty as soon as the victim turned up and before they had given any evidence.
Criticism of defence practitioners
Defence solicitors also attract criticism. Following a guilty plea or verdict, it is believed that they offer ‘irrelevant’ mitigation based on their client’s drunken state.
Of course, these complaints fail to acknowledge two important matters:
- being drunk is an aggravating feature in sentencing guidelines rather than mitigation
- whether a defendant was drunk may, however, allow the court to treat an isolated incident as being our of character
What is the real complaint?
In reality, the complaints within the report seem to relate to the following:
- the failure to give proper training to Magistrates
- a failure to properly fund support staff
- under use by police and CPS of the charge of coercive or controlling behaviour
- insufficient support of the complainant to ensure they attend to give evidence
- failure by police or CPS to present full information in support of applications for restraining orders
- evidential failings that impacted on the court process
- courts not ordering Newton Hearing to decide a factual basis for sentence where certain parts of an incident are denied
All of these are capable of change subject to the necessary resources being provided. The defence cannot be said to be responsible for any of them. At first glance the analysis of the limited number of cases in the study does not acknowledge the legal considerations and framework that would apply in many of the cases.
Conclusions
The report is based on a limited number of cases in a single geographical region so the conclusions that could or should be drawn are perhaps limited.
While defendants can be confident that they may gain an advantage in pleading not guilty and having the matter listed for trial they will continue to do so. Further, it is their right to test the evidence at trial.
The labelling of the entering of a not guilty plea as ‘gaming the system’ is unhelpful. Some defendants will do so hoping to gain the advantage of a witness not attending, others (perhaps the majority) will plead not guilty because they have a defence to the charges brought.
We regularly provide advice and representation at contested domestic violence trials. An example of such a trial can be found here.
Those defendants who in the end plead guilty will lose credit for a plea that could have been entered earlier and will find it extremely hard to argue that any genuine regret or remorse exists. Sentencing for domestic violence allegations are governed by a specific guideline.
The police and the prosecution have the evidential tools at their disposal to build many cases without the need for a complainant to attend. Some considerations relating to such cases can be found here.
The full report can be found here.
Instruct an expert in defending domestic violence allegations
Allegations of domestic violence are treated seriously by the courts. They also need handling with sensitivity. The law can be complex, particularly where the prosecution do not seek to rely on the complainant’s evidence.
As a result, if you are arrested or know that the police wish to speak to you about an offence of domestic violence make sure you insist on your right to free and independent legal advice.
The advantages of such early advice legal advice can be found here.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case. Legal aid may well be available to fund your defence at court.
We have offices across the East Midlands. You can find your most convenient office here. Alternatively you can contact us using the form below.
Monthly Archives: August 2018
The crime of criminal damage is made out if a person intentionally or recklessly damages property. Most commonly it is damage to cars and windows, very often as an act of revenge.
The damage does not need to be permanent. There have been cases where graffiti, the use of water-soluble paints on a pavement and squashing a policeman’s helmet have all been held to be criminal damage, as has flooding a police cell.
If action, expense or inconvenience is involved in putting the matter right then damage will have been caused, as would be the case if you created ‘crop circles’ in a wheat field.
The court will consider all of the circumstances. Whether something is damaged is a matter of fact or degree that may have to be decided by the court if the case goes to trial.
What if it is my property?
You cannot unlawfully damage your own property, but it can still be an offence to damage jointly owned property. So, a person who smashes up a family home in a fit of rage would very often be guilty of the offence of criminal damage.
What if it was an accident?
There is sometimes a fine line between accident and recklessness. To prove recklessness, the court should be sure that you were aware of a risk that property would be damaged, and, in the circumstances, it was unreasonable for you to take that risk.
The offence can be committed by being reckless or intending to cause the damage. Intent is simply that you committed the damage on purpose (although in legal terms it is slightly more complex than this).
Is there a defence to criminal damage?
Whether the offence is committed depends on damage being caused without “lawful excuse”. You would have lawful excuse if you believed you had consent to cause the damage or would have had consent or that you were protecting your own property or that belonging to someone else. Your actions would have to be reasonable in all the circumstances. It is your belief that is important so if it is honestly held it may not matter if the belief is not justified.
Causing damage simply because you are drunk will afford neither a defence nor mitigation.
Where will I be dealt with?
This offence will be dealt with in the magistrates’ court where the value involved does not exceed £5,000. When there is more than one offence of damage the total of the damages will be used to calculate whether the offence is £5,000 or less. The court determines the value of the damage in deciding whether they are to deal with the case.
Where damage is caused by fire (arson) different considerations apply.
Is there a time limit on prosecution?
Even though certain offences can only be dealt with in the magistrates’ court the six-month time period for prosecution does not apply.
What sentence will I get?
Minor damage such as breaking a small window is likely to result in a conditional discharge or fine. Significant damage up to £5,000 caused as part of a spree can lead to a community order or custody of up to three months. The higher the value, the more likely imprisonment will be imposed, the maximum sentence at the crown court is ten years.
In appropriate cases we will work hard to have your case diverted away from the criminal justice system. An early apology and offer of compensation can sometimes be enough to avoid a criminal case.
How can we help?
If you are arrested or know that the police wish to speak to you about an offence of criminal damage then make sure you insist on your right to free and independent legal advice.
The advantages of such early advice legal advice can be found here.
In a case of criminal damage this might include diverting your case from the court process entirely.
If you have already been interviewed or face court proceedings we can still make a real difference to the outcome of your case. Legal aid may well be available to fund your defence at court.
We have offices across the East Midlands. You can find your most convenient office here. Alternatively you can contact us using the form below.
Monthly Archives: August 2018
Today it was announced that the Government had suffered another setback in its relentless attack on publicly funded legal representation. Since being forced to withdraw its controversial two-tier plan for criminal work it has been forced to re-instate certain prison law cases into the scope of legal aid and had to abandon a scheme to tender for Housing Duty Solicitor schemes on the basis of both quality and price.
The Government had reduced payments by an unsustainable 37% argued The Law Society, putting at risk the viability of firms providing advice and assistance under the legal aid scheme. This would have a knock on effect for potential clients around the country as local solicitors’ practices had to close.
It is hope that this latest decision will force the Ministry of Justice to the negotiating table to devise a scheme that sees economically viable rates of pay in the most serious and complex of cases.
Bindmans Press Release
Bindmans, the solicitors instructed by The Law Society in judicial review issued the following press release on 3 August 2018:
“Today, a Divisional Court comprising Lord Justice Leggatt And Mrs Justice Carr DBE upheld a judicial review challenge brought by the Law Society to a decision made by the Lord Chancellor to introduce a 40% cut to the maximum number of pages of prosecution evidence (‘PPE’) that count for payment of criminal defence solicitors. The regulations introducing the cut will be quashed (para 143 of the judgment).
In practical terms, the cut has meant a huge amount of work on the most complex Crown Court cases has been unremunerated since December. Payments to criminal defence solicitors have been up to 37% lower, but the Legal Aid Agency has expected precisely the same amount of work to be done as before. This was the first occasion in which a cut of this kind had been made to Criminal Legal Aid.
The Divisional Court’s judgment is highly critical of the way the cut decision was made. Discussions with the Law Society on reform of the LGFS had been in train (para 23), but were “terminated” shortly before Ministry of Justice officials announced proposals to make the cut were announced in 2017. However, consultees were not told about or shown the analysis of costs trends officials had prepared for the Lord Chancellor to answer the “crucial question” of whether a cost judge’s decision had caused a substantial increase in LGFS costs and undermined the policy intention of the scheme (para 93). The Court observes (para 86) “no reason – let alone a good reason – has been given for not disclosing during the consultation process the LAA analysis and its results…”, concluding (para 97): “the failure to disclose this information was a fundamental flaw in the consultation process which made it so unfair as to be unlawful.”
An impact assessment accompanying the consultation paper had compounded the unfairness by giving a“misleading” impression of the basis for the decision (para 94):
“It should also go without saying that consultees are entitled to expect that consultation documents will not be positively misleading. When a draft Impact Assessment is published which purports to set out the “evidence base” for the proposal, including an analysis of costs and benefits and a statement of key assumptions and risks, the reader would understand that any analysis relied on to estimate the increase in expenditure which it was the policy objective to reverse was described in the Impact Assessment. The fact that the responsible Minister has certified that the Impact Assessment “represents a fair and reasonable view of the expected costs, benefits and impact of the policy” would further reinforce that understanding.”
As to the Lord Chancellor’s arguments that consultees ought to have deduced there was an analysis and sought it, the Court comments (para 93):
“It is difficult to express in language of appropriate moderation why we consider these arguments without merit. The first point, which should not need to be made but evidently does, is that consultees are entitled to expect that a government ministry undertaking a consultation exercise will conduct it in a way which is open and transparent.”
The analysis was disclosed for the first time during the course of the litigation and then analysed by the Law Society’s expert witness, Professor Abigail Adams, who identified fundamental errors. The Court went on to hold that these errors meant it had been irrational for the Lord Chancellor to rely on it, It was (para 122):
“we see no escape from the conclusion that the LAA analysis was vitiated by methodological flaws and that no reasonable decision-maker could reasonably have treated the figure of £33m [of increased cost] produced by that analysis as an estimate of increased expenditure attributable to the Napper decision on which reliance could reasonably be placed.”
The Law Society was represented by John Halford, Farhana Patel, Theo Middleton and Patrick Ormerod of Bindmans LLP and barristers Dinah Rose QC and Jason Pobjoy of Blackstone Chambers.
John Halford said today:
“Legal Aid was established, and should function as, a basic, non-negotiable safeguard of fair process and individual liberty in criminal cases. But rather than cherishing this vital part of the British legal system, successive ministers have undermined it with over a decade of cuts based on carelessly made decisions like this one. Had the Law Society not stepped up to defend criminal defence solicitors, the fundamental flaws in the analysis on which this decision was based would never have come to light and their irrationality would have escaped proper scrutiny.””
The full judgement of the case can be found here:
Judgement in The Law Society v The Lord Chancellor
Contact one of our criminal law specialists
We provide advice and representation under the legal aid scheme for cases heard before the Crown Court. Some information about this legal aid scheme can be found here.
You can find your nearest office here.
Monthly Archives: August 2018
A police interview under caution will be an opportunity for a suspect to provide the police with their defence to criminal charges. There may be circumstances in which a suspect with a defence nevertheless exercises their right to silence. You can read more about that option here.
Using a prepared statement instead of answering questions
An alternative to a suspect answering police questions will be to use a prepared statement. If a suspect later faces trial for an allegation, Magistrates or a Crown Court jury might be asked to draw conclusions about the truthfulness of any account given. This could happen where an accused relies on a fact in their defence at court that it was reasonable for them to mention in interview.
The benefit of seeking our free and independent legal advice in police interview is that we will advise you of the approach to take that is in your best interests having considered all of the circumstances.
Our advice is subject to legal privilege and therefore private
Any advice that we give to you and your instructions that allow us to give that advice are confidential and subject to legal privilege. We can only disclose your instructions and our legal advice with your permission.
A written statement reduces the risk of adverse inferences
Following advice, a decision might be made that it is more appropriate for you to set out your defence in a written statement that can be read out by your legal adviser at the start of the interview. Thereafter you would be advised not to answer any of the questions put to you.
Any fact mentioned in a prepared statement will be something mentioned in when questioned by the police. As a result it may go some way to preventing any adverse inferences being drawn by the court at trial following a ‘no comment’ interview. The effectiveness of the prepared statement is likely to depend upon how forthcoming you are in providing full instructions.
A prepared statement allows a suspect to control easily the amount of information that they disclose to the police. It means that the police have less information to question a suspect on than if they answered questions. Once questions are answered, it is far easier for an interviewing officer to probe for any problems or inconsistencies or to elicit further information.
When might we advise that you use a prepared statement?
Our solicitors and accredited representatives recognise that each case is different and our advice will depend upon the evidence the police hold and your instructions.
Such a statement might be appropriate where it is clear to your legal adviser that the police are not providing full disclosure of the evidence that they hold and may surprise a suspect during interview with new information.
Where in normal circumstances we might advise a client to answer questions in full, it may be that there are particular reasons for you to submit a prepared statement instead. These might include:
- Where a suspect is vulnerable and might not do themselves justice in interview were they to answer questions
- A suspect may be unable to withstand the pressure created by the interview process
- Circumstances in which a suspect is reluctant to speak candidly with their adviser
- An interview may provide additional information to the investigating officer that will not assist the suspect
- It may be appropriate to deny certain facts and avoid admitting others, particularly where this may disclose further offending
When should I hand in my prepared statement?
You will receive advice as to when it is appropriate to make your prepared statement. It might be after initial interviews in order that we know the case against you. It might be at the end of all of the interviews. There is a final opportunity to do so on charge.
In some cases the contents of the statement will not be disclosed to the police in any interview, but will dated, timed and signed by you and only produced if there is sufficient evidence to take your case to court.
Who drafts the statement?
Your solicitor or accredited police station representative will draft the statement for you in accordance with your instructions. It will be designed to mention all of the necessary information to reduce the risk of an adverse inference. This is important as it is likely to be used at trial in one form or another if you are charged.
Always seek our free and independent advice in police interview
All the advice that we give you will be with your best interests as our sole consideration. The only reason that we are there is to try and ensure the best possible outcome for you.
We have the experience to consider not only the immediate situation of your police detention but also what may happen should your case come to court.
We aim to make what might be difficult decisions easier for you and relieve some of the pressure that you will feel as a result of being interviewed.
As a result you can see that it is vital that you ask for our free and independent advice in police interview. A number of other benefits to having legal advice can be found here.
We provide nationwide advice and assistance in the police station from our offices across the East Midlands. You can find your nearest office here. Our expert representation is available 24 hours a day, 7 days a week.
Alternatively you can use the contact form below:
Contact
menu
