In a reply to a letter by Lord Justice Fulford regarding the Flexible Operating Court Hours pilots, Joe Egan, president of the Law Society, has expressed concern over the controversial scheme.
Financial Concerns
The President outlines the realities of working as a criminal defence solicitor.
“The financial impacts on hard-pressed solicitors’ firms are likely to be considerable. Fee-earners will still have to undertake other work outside any hearings in the pilot courts, such as duty attendances at the police station and work on other clients’ files. Unlike others working within the court system, with the possible exception of solicitors in the very largest criminal defence firms, they do not have the benefit of being able to work shift patterns.”
He stresses what HMCTS appears to ignore, the fact that work is necessary before and after all court hearings.
“In addition, when a case is listed for hearing, solicitors already work hours on that case that extend outside the normal court sitting hours. A solicitor would normally attend court at 9am for a hearing that starts at 10am, in order to deal with essential preparatory work, including speaking to the client, the prosecution, and any defence witnesses. Similarly there is always work to be done following the hearing: explaining the sentence to the client if necessary and undertaking follow-up paperwork. This means in practice that the proposed court hours are regularly extended by at least an hour at each end of the day, and will therefore extend even further into unsocial hours as a result of these pilots than the sitting times themselves would suggest.”
No Extra Money
Unsurprisingly, there will be no extra money from the Government to subsidise the pilots. Firms will be expected to cover the cost themselves. “The cost of paying overtime to the fee earners who will be working these additional hours will need to be covered by the firms themselves, given that the LAA has made it clear that there will be no additional payments for solicitors working in the pilot courts.”
This comes at a time when the profession is still awaiting a decision on whether there is to be a further 8.75% cut in police station and Magistrates fees, as well as dramatic cuts to Crown Court and Advocate fees.
Hopefully the intention of the flexible operating hours pilot is genuine, and at some point HMCTS will give proper weight to the concerns of practitioners.
Nottingham criminal legal aid solicitor Martin Hadley was instructed in a case alleging assault upon two staff members at a local hospital. Eventually the prosecution was persuaded that it was not in the public interest to continue with the prosecution. It was no doubt a shame that this sensible review did not take place sooner, bearing in mind the vulnerabilities of his client.
Police interview at home without a solicitor
Martin’s client had been interviewed by the police regarding these assaults. The interview was undertaken at the client’s home address and without the benefit of legal advice. Although such an interview technique might create the impression that the police are not taking the matter particularly seriously, the evidence gathered through interview carries just as much weight if gained at a police station in a formal interview.
Second legal aid solicitor instructed
This firm was first instructed by our client after another firm of solicitors had failed to secure free criminal legal aid for her. This resulted in an earlier trial being adjourned because the steps necessary in her defence had not been taken.
Martin took the time to speak with our client’s carer. He obtained instructions as to our client’s income and this allowed an application for legal aid. This was granted without difficulties. Unfortunately, owing to her health difficulties our client was unable to provide us with clear instructions regarding the criminal charges.
Eventually Martin received the papers relating to her case from the former solicitors. He read the papers and discovered that the allegations involved assaults on two nurses at the hospital. For understandable reasons, where a person is convicted, the courts will always take such matters seriously.
Argument that our client was acting lawfully
The nurses would give evidence that a doctor from the Mental Health Unit had asked for the client to be detained so that staff at the relevant ward could undertake a full mental health assessment. The nurses who were dealing with our client at the time did not have training on how to deal with patients with mental health difficulties.
Our client decided to leave the hospital. The staff attempted to restrain her and at that time she was said to have assaulted the nurses.
Upon a review of the file Martin decided to approach the case from two angles to try and secure the best result for his client. Firstly, he pointed out to the prosecution in correspondence that there was currently no evidence that the nurses had a power to detain his client under the Mental Health Act. Without such authority then it could be argued that his client was free to leave the hospital. This meant that any attempts to detain her would have amounted to unlawful force and so our client would be entitled to resist. This would mean that the alleged assaults were not unlawful.
Despite various requests by the prosecution, the hospital was never to release a copy of the order or the relevant notes relating to the incident. Delays in the trial being heard because of this.
How could it be in the public interest to proceed?
The issue of lawful authority being pursued so Martin’s second aim was to try and persuade the CPS to discontinue the proceedings. He argued that it would not be “in the interests of justice” to continue with the proceedings because of the circumstances.
The client was clearly suffering from an illness that required treatment at the time of the allegations. She had no recollection of the incident due to what was believed to have been a psychotic attack. This contention was backed up by the fact that the client was subsequently detained under the Mental Health Act following the incident.
Martin made lengthy representations to the prosecution because of these health issues. The health problems were continuing, and a further period of detention had followed under the Mental Health Act. Specific guidance from the prosecution and the National Health Service suggested individuals should not be prosecuted because of their illness.
Late decision by prosecution means that case dropped on day of trial
Despite this clear guidance and irrefutable medical evidence the prosecution would not make a final decision as to withdrawing the case. Fortunately, the prosecution discontinued the case on the day of the trial, although numerous attempts had been made to secure that outcome prior to the trial date.
Criminal Legal Aid in the Magistrates’ Court
We know how important it is to secure affordable representation if you face proceedings in the Magistrates’ Court. There is both a merits test and a means test but we will help you complete the forms. This is so that you have the best chance of passing both.
Even if an initial decision is made that you have too much income, we will provide you with advice about pursuing an exceptional hardship application to try and ensure that you receive free legal aid. This is because as a legal aid solicitor we specialise in this type of advice.
Instruct a Nottingham criminal legal aid solicitor
Nottingham criminal solicitor Martin Hadley
If you wish to instruct legal aid solicitor Martin Hadley then please telephone him on 0115 9599550. Alternatively, you can contact him using the form below.
Nottingham crime solicitor Alex Chapman represented a client before Nottingham Magistrates’ Court for allegations of fraud. This was a DWP prosecution. The particular circumstances were such that he was able to persuade the prosecution that it was not in the public interest to continue with the prosecution. His client therefore kept her good name.
DWP Prosecution alleges £17 000 fraud
The allegations faced were charged under the Fraud Act 2006. The offence were based on a fraudulent claim for benefits between 2011 and 2013. The case was serious because there had been an over payment of benefits of approximately £17 000.
Alex’s client had been interviewed by the DWP, Shortly afterwards she had been offered a job abroad so left the country. She was summonsed to attend court in 2014 but was unable to attend the court dates. As a result the Magistrates’ Court had no alternative but to issue a warrant for her immediate arrest.
Despite failing to attend court our client had done her best to put herself in a favourable position. She had paid off the debt in its entirety while in work although this had taken her two years to achieve. She also made contact with the court to fix a date to surrender to the warrant.
All of the money repaid by our client
It was at this point that we were instructed and she informed us of the date. Once Alex was involved he gave her advice as to the likely sentence for this offending. As this was a prosecution under the Fraud Act 2006, the position was immediately more serious than had it been a prosecution for over-claiming benefit. The position was aggravated because of the allegation that the claim had been fraudulent from the outset. The Magistrates’ were likely to commit the matter for sentence upon a guilty plea because of this, and custody was likely.
Representations lead to withdrawal of DWP prosecution
At court Alex took the opportunity to speak with the prosecutor. His discussions were designed to see whether the prosecution could be persuaded to abandon the prosecution as not being in the public interest. This would be because:
his client was of good character
all of the over-paid benefits had been repaid
the offending was several years old
the chances of re-offending appeared slight
the fact that she lives abroad would mean that community elements of any sentence could not be imposed
Alex’s representations were successful so proceedings were withdrawn. As a result, all the attendant risks for his client vanished and she kept her good name.
Affordable fixed fee representation
Alex’s client was not financially eligible for free advice and representation before the Magistrates’ Court. As an alternative he was able to provide her with a fixed fee cost of his representation. She could budget for these costs because of this.
Positive Client Feedback
Perhaps unsurprisingly, bearing in mind the result that Alex achieved on behalf of his client, she was prompted to provide the following feedback:
“Words cannot describe how thankful I am to you. It’s an incredible feeling and I appreciate your help and support. ”
“I would like you to bear in mind that if at any point in your career you require a client reference, you will always have my positive feedback on your fantastic work.”
Contact a criminal solicitor in Nottingham
Whether you face an interview under caution with an investigator or a DWP prosecution before the Magistrates’ or Crown Court you will want to instruct an experienced criminal solicitor. If you do so you will have the confidence that they will know what can best be achieved on your behalf in the circumstances that you face.
Please do not hesitate to contact us on 0115 9599550. You can also use the contact form below.
Chesterfield criminal Solicitor David Gittins recently used all of his court experience to successfully argue at trial that there was no case for his client to answer. This would mean that all charges would be dismissed. As a result his client would be not guilty of the offences. Previous criminal behaviour need not mean that a person is inevitably guilty of new offences.
The Allegation
David’s client had been arrested and charged with an allegation of criminal damage. The background was one of anti-social behaviour directed towards a neighbour. A restraining order had been put in place as a result.
The complainant, as well as having the protection of a court order, had also put up CCTV . This was specifically to cover a passageway between the two properties.
The allegation was that David’s client had damaged this camera. Although the damage was not caught on the camera, and there were no eye-witnesses, the prosecution had chosen to bring the case to court. The case was brought on the basis of our client’s poor behaviour in the past and because he was in the area at the time the camera was damaged.
Although David’s client had denied the offence in police interview, he appeared to accept causing damage by catching himself on some low hanging wires in the dark. He himself had called the police the following day to give that account.
The Trial
David had seen his client to take instructions and provide advice on on several occasions before the trial date. David had also taken the time to visit the property. He took photographs to allow the Magistrates to fully understand the scene.
These instructions allowed David to develop a case plan ensuring that he knew what evidence was required from the witness to secure an acquittal for his client.
At trial the owner of the CCTV attended and gave evidence about the its location and how and when it was fixed to the wall. During his evidence the witness accepted “it was possible” that some of the wires may have dropped. David knew this answer was key. Previously in discussions with the prosecution, it was claimed that there were no such wires.
The witness gave evidence for the prosecution for over 30 mins. David then questioned the witness himself, although he chose to only a small number of questions. This questioning only lasted three minutes.
After the prosecution case had finished, David made an application that the case ought to be dismissed. This was because there was simply no evidence upon which his client could be convicted. The prosecution witness had confirmed what his client had said about loose wires. There was no eye witness testimony to the incident. As a result there was no evidence to challenge his account.
The Magistrates retired and returned a short while later accepting David’s argument and dismissing the case.
His client was delighted as he was subject to a Suspended Sentence Order so any conviction would have almost certainly resulted in a prison sentence.
Criminal legal aid in the Magistrates’ Court
Legal aid is available for advice and representation before the Magistrates’ Court. It is dependent upon our clients satisfying the legal aid agency of the merits of their cases and that they qualify on their means.
In this case, David’s client had the benefit of legal aid which means that his representation was free of charge to our client.
Instruct a Chesterfield criminal solicitor
Chesterfield partner and crime solicitor David Gittins
Whether you find yourself under investigation by the police, or facing proceedings before the Magistrates’ or Crown Court, you will want to instruct a specialist Chesterfield criminal solicitor to present and argue your case. We will give you a clear idea of what needs to be achieved and how it can be will benefit you.
There are many reasons to take advantage of our free and independent legal advice in police interview. You can read about those here.
Chesterfield Motoring Solicitor Kevin Tomlinson was recently instructed in a case where his client was at real risk of a driving disqualification. Her latest offending left her with 19 penalty points on her licence. In order to ensure the best result for her, Kevin had to ensure that offences from two different court centres were before a single court.
Kevin’s client had received a requisition from a Court in Staffordshire. This was as a result of new speeding offences. If convicted she would have been over the 12 point penalty limit for keeping her driving license and a ban was possible. Kevin knew that the client would have a strong argument to keep her license as losing it would cause her exceptional hardship.
His client then discovered that she was to have a further case before Derby Magistrates’ Court involving similar offence.
It was important that both cases be listed together. This was because Kevin could only put forward the same reasons for exceptional hardship once within a three year period. Kevin managed to delay the case in Staffordshire until the case in Derby had been listed. He was then able to have both matters listed before the same Magistrates’ Court.
At the point of sentencing Kevin had the opportunity to put forward the exceptional hardship argument on behalf of his client. This gave her an opportunity to keep her driving license even though she now had 19 penalty points on her driving licence as a result of her guilty pleas.
Exceptional hardship arguments
As all drivers know when you reach 12 penalty points the Court will disqualify you from driving under the totting up procedure. However, if it can be shown that exceptional hardship will result from a disqualification a driver is enabled to keep their license even though they have passed the 12 point penalty limit.
The concept of “exceptional hardship” is not comprehensively defined by the law. It does, however, have to be more than an inconvenience caused as a natural result of a driving ban.
Issues that can amount to hardship may include:
Loss of a job resulting in loss of accommodation for others such as children
An inability to get to any work due to geographical and public transport restrictions
Loss of other third persons employment due to businesses having to close
The requirement to take family members to urgent medical appointments when no other transport is available
In this case Kevin argued exceptional hardship before the Magistrates. His client gave evidence to the court about the difficulties she would face if she lost her licence. Although the case was initially heard before two Magistrates, they could not agree. As a result a third Magistrate was brought in so Kevin had to present the case again.
No driving disqualification but 19 penalty points
Fortunately for his client, Kevin was successful in his representations and exceptional hardship was found. The court chose to exercise its discretion not to impose a driving disqualification. This meant the Client could continue driving and was simply ordered to pay financial penalties for these offences.
Kevin’s advocacy skills and ability to see the bigger picture when collecting together cases before making his argument enabled the client to keep his driving licence.
Privately funded cases
For this type of case legal aid was not available. Instead an agreed fixed fee was agreed in advance of the work being undertaken. In the event this was arguably a small price to pay in order that our client keep her driving license.
Contact a Chesterfield Motoring Law Solicitor
Chesterfield motoring law solicitor Kevin Tomlinson
If you require advice and representation from an expert road traffic law solicitor because you face a driving disqualification then please contact Kevin at our Chesterfield office on 01246 283000 or use the contact form below. Details of our Chesterfield Office can be found here. Alternatively you can find your nearest office here.
Kevin can provide you with detailed and affordable advice as to whether you are able to challenge the prosecution evidence relating to your road traffic offence, or how you are likely to be sentenced following a guilty plea.
