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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 alleagations

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.

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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.

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There is no magic to the phrase no comment.  It is simply a device for a suspect to indicate that they have no intention of answering police questions.  It allows the police to put questions and the interview to progress easily.  An alternative would be to stay mute for the duration of the interview, but that would only prolong matters!

Advice on your decision to answer no comment

The decision whether to answer police questions or make no comment replies in police interview can be a difficult one.  There are many different considerations to balance.  Since the changes brought in by the Criminal Justice and Public Order Act 1994 many more suspects are advised to answer police questions than previously.

This Act allows Magistrates’ or a jury to draw conclusions from a no comment interview in certain circumstances.  There are four conditions, including whether an accused failed to mention a fact later relied on in their defence and whether it was reasonable at the time for the accused to have mentioned this fact in interview or on charge.

Our advice is subject to legal privilege and cannot be disclosed

There is still, however, a place for the no comment interview but you are best advised to seek free and independent legal advice from a specialist solicitor or accredited police station representative before making the decision not to answer questions in police interview.  As we are entirely independent of the police any advice suggesting that you reply no comment to police questions will be in your best interests.

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.

Your police station representative will always make a note of the instructions that you give, so even if you make ‘no comment’ replies they can give evidence to the court if necessary to show that you haven’t made up a defence once you are charged and papers are served.

Our advice will always be tailored to the circumstances of your case

 Our police station advisers know that each case will turn on its own facts.  Our advice will balance any risks and benefits to you of a no comment interview.  You will be fully advised of the advantages and disadvantages of such a course of action to allow you to make a final decision.

Opportunity for a confidential consultation about the evidence

Before providing advice allowing you to make that decision your legal representative will always seek a confidential discussion with you about the evidence. That will allow them to take your instructions in private and give you advice.  It could be that the police choose not to provide the private facilities necessary.  That in itself could mean that a full discussion of the allegations is not possible and a no comment interview would be advised.

Your police station solicitor will be alive to factors that might affect whether you should answer questions – these could include youth, mental vulnerability, a hearing or speaking disability, poor command of language, a severe nervous state or other condition.

What if I am guilty of the allegation?

 It may be that although you are guilty of the offence the police may not have enough evidence to put before a court to convict you without your admission. There might be concerns about the level of disclosure of evidence from the police which could suggest that the evidence to convict you simply isn’t there. As a suspect is ‘innocent until proven guilty’ you are perfectly within your rights to choose not to answer questions.

Alternatively, it might be that the police do not know the full extent of your offending and answering questions would make matters far worse for you.  Again, this would be a valid reason for replying no comment to police questions in interview.

As the caution only talks about inferences rather than any benefit of an early admission, the Court of Appeal has stated that you cannot lose discount for early guilty plea on the basis of a no comment interview.

Our free and independent legal advice will balance these considerations against other concerns that you might have.

If you admit the offences in police interview then you will have the benefit of demonstrating remorse for your offending.  True remorse can significantly reduce any sentence that you receive.  The greatest demonstration of remorse might be the strongest evidence it is genuine.

Alternatively, an early admission might mean that a prosecution can be avoided and you can be diverted from the court system.  To receive a caution or a restorative justice disposal an admission will normally be required from you.

What if I have a defence to the charge?  Shouldn’t I tell the police?

There may be a number of reasons why you would choose not to answer questions if you are innocent of the charge.  For example

• You may know who the true culprit is but not want to name them
• Your defence might involve admissions to some other damaging or embarrassing conduct but that is not illegal
• We are unable to fully advise you as the police have not given us enough information about your case
• The case is too complex or old to provide an immediate response

Other factors that might be relevant could include:

• Your state of mind at the time of interview. Perhaps you were suggestible or in a state of shock?
• You might be easily confused and liable to make mistakes in your account
• There is a need to refer to information that isn’t to hand in police interview to check an alibi
• We identify that there is some other good reason why you might not come over well in police interview

Our specialist police station advice will include whether there is a good reason for making no comment in interview, including whether a prepared statement should be used instead to control the manner in which the police are told about your defence.

We will advise you as to whether there are likely to be issues of admissibility at court relating to such matters as comment that you have made to the police upon arrest or any informal identification that might mean you should exercise your right to silence.

Always seek our free and independent legal advice in police interview

As you can see there are many factors that affect a decision whether to answer questions in police interview or answer no comment to any questions put.  It is vital that you seek our advice which is free of charge before you commit to a decision that could provide the evidence to secure a conviction or lead to problems in any future court case.

A number of other benefits to seeking 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:

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Many in the medical profession have been up in arms following the recent High Court decision involving Dr Bawa-Garba (General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin), overturning the decision of the Medical Practitioners Tribunal.

The case had followed on from proceedings before the Medical Practitioners Tribunal which had ruled that Bawa-Garba should be suspended from practice for a period of one-year. That ruling was challenged by the General Medical Council, resulting in Bawa-Garba being erased from the medical register, which brought to an end her right to practice medicine.

The High Court observed that it reached ‘this conclusion with sadness but no real hesitation’.

Medical Practitioners Tribunal Decision Appealed

On appeal against this decision, the Court of Appeal has heard her removal for a “one-off mistake” had robbed the NHS of a “young and talented” doctor.  The original decision to suspend rather than dismiss the doctor was argued to be “humane and balanced”, whereas the GMC have argued that  “any other sanction undermined its rules and her manslaughter conviction.”

So, what is the background to this unhappy story?

In November 2015 Bawa-Garba was convicted at Nottingham Crown Court for an offence of manslaughter by gross negligence. She was sentenced to two years imprisonment, which was suspended.

This conviction came about due to her negligent care of a six-year-old boy, who died. An appeal against conviction in December 2016 failed.

In the later High Court proceedings, it was observed that ‘her failings on that day were “truly exceptionally bad” and that this must be reflected in the sanction.

So, why did the Medical Practitioners Tribunal (MPT) only order a suspension?

When the MPT heard the case, it had the benefit of hearing a substantial body of evidence about the pressures placed on Dr Bawa-Garba and the failings of others. In essence counsel for the GMC submitted that the Tribunal had in effect allowed evidence of systemic failings to undermine Dr Bawa-Garba’s personal culpability, and to do so even though those failings had been before the Crown Court which convicted her.

The Tribunal had therefore decided to find the Doctor less culpable than the jury had as a matter of law, and for that reason, the decision could not stand.

The High Court observed:

“The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance.

There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad.”

A crowd-funding campaign to assist Dr Bawa-Garba was set up. One of the doctors behind the crowdfunding campaign, Dr Moosa Qureshi, said:

”There needs to be greater transparency as to why these decisions were made and who made them. Many of us feel that Dr Bawa-Garba was unfairly discriminated against and scapegoated for multiple system failings that could easily have happened to any of us in the current political crisis of the NHS. We want patients to be protected and for this doctors need to be able to look after patients without fear that they will be blamed or worse struck off when working in unsafe and dangerous conditions.’

So, many believe that Bawa-Garba has been made a scapegoat for systemic failings in the NHS.

In a further twist to this story, the previous Health Secretary Jeremy Hunt ordered a review into criminal manslaughter so far as it affects medical practitioners.  The health secretary stated that clarity was needed about drawing the line between gross negligence and ordinary errors, and that ‘Doctors should learn from – not fear – mistakes.’

The review, led by Sir Norman Williams (a former President of the Royal College of Surgeons), reported in June 2018.  In the introduction to the report, Sir Norman wrote:

“We hope our recommendations will change the environment by establishing a just culture and providing reassurance to healthcare professionals, patients and their families that gross negligence manslaughter cases will be dealt with in a fair and compassionate
manner.”

The full report can be found here.

By any measure this is a sad case for all concerned and criminal practitioners will be keeping a watchful eye on the outcome of the Court of Appeal case.

Contact a crime and regulatory law specialist

If you are a professional person facing criminal proceedings then please contact our criminal and regulatory partner Martin Hadley immediately.

Martin will be able to provide free and independent legal advice in police interview.

If charged, we will provided affordable representation before either the Magistrates’ or Crown Court, and be able to provide advice with an eye to any future potential disciplinary proceedings such as those before the Medical Practitioners Tribunal.

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In the UK we have not had the death penalty for over 50 years. The last hanging in England took place in 1964 when Peter Allen and Gwynne Evans were hanged for the murder of John West, 15 months before the death penalty was abolished.

Since then there has been a long-held opposition to the death penalty which has been applied in extradition cases.

What is extradition?

Extradition means legal proceedings for the return of a person in the UK to another country to face criminal proceedings (or proceedings abroad to return a person to the UK).

How is the death penalty relevant?

When the requesting country has the death penalty available, and it could apply to the criminal proceedings in question the UK would usually seek an assurance that the person will not face the death penalty if extradited. If an assurance is not given, then UK law would prohibit the removal from the UK of that person. The death penalty is forbidden under the European Convention of Human Rights.

Why is it in the news now?

Alexander Kotey and El Shafee Elsheikh are alleged to have been involved in the torture and beheading of more than 27 victims as members of a cell of Isis executioners in Syria and Iraq. They are not subject to extradition as they were not arrested in the UK.

They have been stripped of their British citizenship, and discussions have been taking place as to whether they should be returned to the UK for trial or taken to the USA. Victims have been both UK and US citizens.

In an unusual move Sajid Javid, the UK Home Secretary, told the USA that he would not seek an assurance over the use of the death penalty and agrees to the US request for mutual legal assistance. This decision is now on hold pending a legal challenge.

What is mutual legal assistance?

Mutual Legal Assistance is a method of co-operation between states for assistance in investigating or prosecuting criminal offences. The guidelines for Mutual Legal Assistance are similar to the law in extradition outlined above, in saying that if the death penalty is a possible sentence, an assurance will be sought that such a sentence will not be carried out in the event of a conviction.

What are the implications?

Commentators are questioning whether this is a relaxation of the policy of opposition to the death penalty in the UK.  Javid apparently stated in his letter that this does not alter the stance of the UK, but it certainly raises questions as to whether assurances would not be sought in the future and in what circumstances.

The Howard League for Penal Reform has already indicated that it may bring legal proceedings to challenge the decision of the Home Secretary.

How can we help?

Fortunately, individuals cannot receive the death penalty in the United Kingdom.  The alternative, however, is that those convicted can face very lengthy prison sentences and severe restrictions on their liberty if convicted.

We not only help those who are suspected of offences but also provide advice on all aspects of prison law for those already sentenced.

If you would like to discuss any aspect of your case please contact your nearest office or use the contact form below.