All posts by Andrew Wesley/h3>

In criminal practice and procedure, you might think that the humble adjournment is a relatively simple and straightforward matter, but you would be wrong.

A little like buses, they are never available when you want one.  However, when you don’t want a case delayed the court always appears happy to work against you.

In reality, the humble adjournment is now a complex process, and only a mastery of the relevant principles will ensure the best outcome for your case.

The wise advocate is armed with a detailed chronology and will be ready to deploy this information without notice on an unsuspecting opponent. All relevant facts will have been gathered and a detailed submission will ensure the best prospects of success.

On occasion, it will be down to a client to assist. If for example, you cannot attend court due to illness or another unexpected matter arising, your solicitors will ensure that you are aware of the detailed information that needs to be provided.

The case law in relation to adjournments is well known, or at least ought to be. In Crown Prosecution Service v Picton, the High Court detailed the factors that a court ought to focus on:

• A decision whether to adjourn is a decision within the discretion of the trial court. An appellate court will interfere only if very clear grounds for doing so are shown.
• Magistrates should pay great attention to the need for expedition in the prosecution of criminal proceedings; delays are scandalous; they bring the law into disrepute; summary justice should be speedy justice; an application for an adjournment should be rigorously scrutinised.
• Where an adjournment is sought by the prosecution, magistrates must consider both the interest of the defendant in getting the matter dealt with, and the interest of the public that criminal charges should be adjudicated upon, and the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight.
• Where an adjournment is sought by the accused, the magistrates must consider whether, if it is not granted, he will be able fully to present his defence and, if he will not be able to do so, the degree to which his ability to do so is compromised.
• In considering the competing interests of the parties the magistrates should examine the likely consequences of the proposed adjournment, in particular its likely length, and the need to decide the facts while recollections are fresh.
• The reason that the adjournment is required should be examined and, if it arises through the fault of the party asking for the adjournment, that is a factor against granting the adjournment, carrying weight in accordance with the gravity of the fault. If that party was not at fault, that may favour an adjournment. Likewise, if the party opposing the adjournment has been at fault, that will favour an adjournment.
• The magistrates should take appropriate account of the history of the case, and whether there have been earlier adjournments and at whose request and why.
• Lastly, of course the factors to be considered cannot be comprehensively stated but depend upon the particular circumstances of each case, and they will often overlap. The court’s duty is to do justice between the parties in the circumstances as they have arisen.

What could possibly go wrong with a simple adjournment?

In a recent case of Pari-Jones v Crown Prosecution Service the following facts emerged:

‘On the morning of the trial, the legal adviser to the Magistrates’ Court received two emails from the defence solicitor, which were written in Welsh and were translated and presented to the court. The first email was sent at 9.23am. The solicitor stated that he was acting for the defendant and that she was a lady approaching 80 years old. It was the first listing for trial, and the criminal damage related to a neighbour dispute.

The magistrates were told that the defendant was very concerned regarding the weather, because it was freezing around her house and the road, and she had no electricity. She was living by herself with no close family. The solicitor further wrote that he was stuck in his home, which was in Pwllheli, and that it was freezing hard. He said he was a distance away from the main road, which had been gritted, and although he could leave his house, he was not feeling comfortable in venturing out.’

Almost unbelievably the court refused the defence adjournment and the defendant was convicted in her absence. The magistrates’ admitted to having considered no case law at all!

The full judgement in this case can be found here.

So, what seems to be an unanswerable request for a simple adjournment, in the wrong hands, can go terribly wrong. That is why we train all of our advocates to never take an application for granted and ensure the best advocacy is always deployed on your behalf.

How we can assist

We have a team of highly trained and dedicated solicitors. Unfortunately you’ll see from the facts of the case set out above that the Magistrates don’t always do what to the bystander should be obvious.

If you face court proceedings we can make a real difference to the outcome of your criminal case.  Legal aid may well be available to fund your defence at court.

 You can find your nearest office here.

Alternatively you can use the contact form below:

All posts by Andrew Wesley/h3>

Thursday 31 January 2019 was a notable date for the Nottingham legal community as local defence practitioner Finbarr Hennessy  retired from practice.

Keeping a low profile

Although having spoken of a wish to retire for some time, his boundless enthusiasm for the job and wish to continue to provide representation for his longstanding client base meant that he continued to delay the inevitable.

In typical fashion, Finbarr sought to keep a low profile, and sought to avoid the (usually) inevitable collection, cards and farewell do.  This he managed successfully.

Some thoughts on the changes to the job

Finbarr offered some thoughts on his departure from a job that he still loved:

“It seemed weird walking out of Nottingham Magistrates’ Court this afternoon after spending 23 years of my life in that building.

Video killed the radio star. Technology killed this out-dated solicitor.”

He confessed that he had “struggled since the day that speedy summary justice was introduced at the Magistrates’ Courts”, offering the view that “justice has gone out of the window to be replaced by “progress” and statistics. To get an adjournment is harder than keeping somebody out of prison.”

Additionally he identified that his “lack of technical expertise means that I am now less efficient than I was in 1995.”

Finbarr’s intention had been to ‘go out with a bang’, perhaps collapsing when bail was refused by the Magistrates or when a client had been wrongly sent to prison.  Unfortunately for him “I have had good results recently, so my blood pressure has remained stable.”

His final assessment was “We are all replaceable. I only work 14 hours a week and I know that my position will easily be covered.”

No doubt his clients will beg to differ, and will recognise the lengths that he went to on their behalf.  Clients and their families had his mobile number and he was effectively on call 24 hours a day, 7 days a week.  If families were distressed by the situation that, particularly, youth clients had found themselves in he would visit families at home in his spare time to try and help.

Client feedback on Finbarr Hennessy

Finbarr was described in glowing terms by any number of clients – ‘The solicitor I have is very good at his job’, ‘A1 Service thank you’ and ‘Finbarr Hennessy is an excellent solicitor and needs no improvement’.

It was all the more pleasing to note that following his move to VHS Fletchers when Campion & Co solicitors stopped undertaking criminal work, his clients still found their way to us and continued to receive the high level of service that they would expect.

Here a Crown prosecutor offers an opinion on his integrity:

Thoughts from colleagues

Following news of Finbarr’s retirement, partner Jon Hullis said:

“You will always be very fondly remembered by everyone who has had the pleasure to work with you, as well as everyone at court, and especially your clients. You are genuinely the nicest person, and this is proved by the fact that even the police like you.”

Andy Siddall, partner, told Finbarr:

“Some people cannot be replaced.

Your dedication and commitment to your clients should be something all young Solicitors (and indeed some older ones) aspire to. In this dull digital age you will be greatly missed and never forgotten.”

Solicitor advocate William Bennett offered:

“You are and always were a diamond.  I wish you weren’t retiring but as you are I wish you well. Rest assured your position will never be “easily covered”.  It is hard to cover one of life’s true one-offs. I am  grateful to have worked with you.”

A final thought is from partner Nick Walsh:

“Your gift is that you care about people and your colleagues and clients will miss you because of it. Enjoy retirement, it is truly well deserved.”

We will try to continue to provide Finbarr’s clients with the standard of service that they have come to expect, although they will agree that he is irreplaceable.

All posts by Andrew Wesley/h3>

Imagine waking up one morning and the horror of the night before quickly unfolds.

Blue lights and uniformed police officers greet you, search your house and find your girlfriend dead in the bathroom.

You have no memory of anything happening overnight, and she was alive and well when you went to sleep.

You are arrested and while riding in the back of the police car, can only think that you must have done it while asleep. It sounds almost comical that this could actually be a viable defence, but the reality is that it could well be.

Are you guilty?

Sleepwalking is most often used as a defence to violent or sexual offences (often referred to as ‘Sexsomnia’) and is a legitimate defence to both.

It falls under the defence of automatism, which is further broken into two types. Which type of automatism will depend on the cause:

• internal (insane automatism), or
• external (simple automatism).

Both of these mean you didn’t act knowingly but acted automatically and without the intention to commit the crime.

It is likely that if this state was brought about as a result of self-induced intoxication, the defence will not be available according to Finegan v Heywood The Times, May 10 2000.

Insanity or non-insane automatism?

Insane automatism is a more difficult defence to put forward.  It requires the defence to prove that it is more likely than not the explanation for the offence.  The rules to be followed are those set out in the M’Naghten case.  The defence also needs to be supported by medical evidence of an internal cause.

Simple automatism, on the other hand, requires the defence only to provide enough evidence to make the issue “live”, in other words to make it a realistic possibility that you acted unknowingly.

Expert evidence will probably be required in both cases:

“I do not doubt that there are genuine cases of automatism, but I do not see how the layman can safely attempt, without the help of some medical or scientific evidence, to distinguish the genuine from the fraudulent” (Hill v Baxter (1958) 1 Q.B. 277, 42 Cr. App. R. 51).

The prosecution will then have to disprove it so that the jury can be sure you acted knowingly.

There is some legal debate in other jurisdictions concerning the class in which sleepwalking might fall, but the courts in England and Wales are yet to grapple with this.  This is perhaps just as well, as the law is complicated enough as it is.

What are the outcomes?

Non-insane automatism, if accepted, will lead to a simple acquittal: not guilty.

Insane automatism is slightly trickier and results in a special verdict: not guilty by reason of insanity. The sentencing options available to a judge are then limited to an absolute discharge, a supervision order, or a hospital order.

Instruct an expert in criminal defence

Sleepwalking cases are important and sensitive cases to deal with. Our specialist lawyers can advise you on whether you have a defence, and help you put that defence forward, advising on prospects of success and instructing experts to help along the way.

As a result, 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 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.

You can read about a case that we successfully defended where automatism was the issue here.

 You can find your nearest office here.

Alternatively you can use the contact form below:

All posts by Andrew Wesley/h3>

Nottingham crime and regulatory solicitor Martin Hadley represented a professional client,  a  pharmacist, who was being investigated by the Information Commissioner’s Office (ICO). Following investigation he was able to secured a positive outcome for this client.

Information Commissioner Received Complaint

The ICO had received a complaint that Martin’s client had been “flying tipping” waste in the locality of one of their pharmacy branches.

A member of the public discovered an abandoned suitcase in the street. Correspondence was found in the case and it was clear that the paperwork was attributable to the community pharmacy operated by Martin’s client. Also found in the bag were documents with the pharmacy stamp upon them which identified the names and addresses of pharmacy patients. On the face of it this appeared to be  a clear breach of patient confidentiality.

The Information Commissioner was investigating a breach of the seventh principle of data protection, namely the requirement to take appropriate technical and organisational measures to avoid the unauthorised or unlawful processing of personal data.

Clear and Robust System

Martin took the client’s full instructions upon the points this evidence supplied by the Information Commissioner. It was apparent that our client had clear and robust systems in place for the disposal of both confidential and non-confidential waste. These processes allowed them to quickly understand how the problem had arisen.

Individuals had been climbing over the wall of their premises and breaking into the waste bins. No doubt these people were hoping to find Controlled Drugs.

Sanctions Available to ICO

The Commission could have taken various steps including:

• Providing advice to the clients.
• Require the client to produce improvement plans.
• Give undertakings to improve compliance.
• Serve enforcement notices.
• issue monetary penalties of up to £500,000.

Positive Client Outcome

The instructions given and our advice meant that we were able to reply to the ICO denying the breach and providing a bundle of documents to persuade the Information Commissioner that no action should be taken.

Our client’s full responses led to the ICO swiftly reaching the conclusion that no further action was necessary.

Contact regulatory solicitor Martin Hadley

If you face investigation by the Information Commissioner’s office, local authority or similar then please contact Martin Hadley straight away on 0115 9599550 or use the form below.

You will no doubt benefit from his clear analysis of your problem, practical advice and robust approach to your problem.

All posts by Andrew Wesley/h3>

The big news story of last weekend was the surprising news that the Prisons Minister is considering whether to abolish the power to impose short prison sentences, those of 6 months or less.

Arguing for the need for reform, Rory Stewart MP told the Daily Telegraph Magazine:

“You bring somebody in for three or four weeks, they lose their house, their job, their family, their reputation.

They come (into prison), they meet a lot of interesting characters (to put it politely) and then you whap them on to the streets again.

The public are safer if we have a good community sentence… and it will relieve a lot of pressure on prisons.”

How effective are short prison sentences?

Short prison sentences are seen by many as ineffective.  They allow little if any time for rehabilitation and cause massive disruption to offender’s lives.  They result in even higher rates of repeat offending.

Supporters of the shorter sentence point to the salutary effects of a ‘short, sharp shock’ and community respite from offending.

This is one of those debates where there is at least some evidence to support all viewpoints.

I does, however, also generate debate on the broader question of what prison is for. Is it to deter, punish, rehabilitate or a combination of things? Or something else entirely?

Once we, as a society, work out what we seek to achieve by imprisonment we can then ask the question – does it work?

A recent case in point

Take a case in point also reported over the same weekend.  Two brothers were each imprisoned for three months following a conviction for perverting the course of justice.  Their case involved trying to evade penalty points for a road traffic offence.

Did the well publicised risk of imprisonment deter them? Clearly not.

Will it punish them? The answer to that is clearly yes, but if they then lose their jobs and homes, is it disproportionate?

Could we have imposed an altogether different and more worthwhile punishment, such as unpaid work in the community?

A refreshingly new approach to penal policy?

The answer to these and other questions concerning penal policy have been debated for a very long time, and traditionally, political parties have avoided any debate that has a flavour of being ‘soft on crime’.

So, it is refreshing to see a government minister willing to grapple with these complex issues, for the greater good.

Any change will require legislation so should not be expected for another 12 months or so, but in the meantime, it does allow advocates an opportunity to debate these issues with sentencing judges.

Maybe, just maybe, even the introduction of this debate might save some defendants from unnecessary and damaging short prison sentences. We shall certainly try.

Contact a criminal law specialist

Until there is any change in the law, everybody charged with an imprisonable offence may receive a short prison sentence depending upon the circumstances.

As a result, if you are arrested or know that the police wish to speak to you about any criminal offence then make sure you insist on your right to free and independent legal advice.

The advantages of such early 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.

 You can find your nearest office here.

Alternatively you can use the contact form below: