Tag Archives: proceedings

The end of the ‘simple adjournment’?

simple adjournmentIn 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.

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VHS Fletchers offices across the East Midlands

Alternatively you can use the contact form below:


Confiscation proceedings – a hidden sentence?

In many cases involving confiscation proceedings, the conversation in conference between solicitor and client may go as follows:

Client: ‘What am I looking at?’

Solicitor: ‘Around 12-15 months, suspended if you are very lucky.’

Client: ‘Oh, I can live with that!’

Solicitor: ‘But there is something else?’

Client: ‘What?’

Solicitor: ‘You are likely to lose your money and your car and have to sell your house.’

What are  confiscation proceedings?

At its most simple it is the process by which those convicted of particular crimes are deprived of their benefit from those crimes.

So, for example, a particular client might steal £20,000 from her employer and spends it on a luxury holiday and new electrical items.

The proceeds of that crime is £20,000.  This is her ‘benefit’ from the crime.  She can expect a confiscation order to be made in that sum.

Are confiscation proceedings fair?

confiscation proceedingsAlthough the process seems straightforward and fair in confiscation proceedings such as the one above the situation is more complicated than that.  For example, the the £20,000 from the confiscation order above  will not go to the employer.  Instead it will go to the state.

The court may also, however, make a compensation order in the sum of £20,000 to repay the employer for their loss.

So, Jill will have to pay two lots of £20 000, a total of £40 000.

Quite possibly if she has the assets.

The potential for unfairness in confiscation proceedings

The situation can be a whole lot worse for some defendants.

For example, a client might steal a Porsche worth £130,000.  He is caught a few hours later by the police.  The the car is recovered undamaged and it is returned to its owner.

The ‘benefit’ in his case is £130,000 (the value of the car).  This is the case even though the car has been returned to its owner within hours.

Examples from real confiscation cases

The examples above are all from real confiscation proceedings.  While the results outlined do not always follow, the problem for defendants is that confiscation proceedings are  ‘draconian and intended to be draconian’.

Certain convictions trigger what are known as the ‘lifestyle provisions’.  This means that the finances going back many years will be subject to investigation for those convicted of a relevant offence.  Unless a defendant can establish that the income was lawfully obtained, any unexplained monies will be at risk of being added to the ‘benefit’ figure.

Should you care if you don’t have any assets?

confiscation proceedingsThe benefit figure will still be determined even for defendant’s who don’t have any money or other property.  If, for example, they come into some money at a later date the prosecution can ask the court for that money.  This might include an inheritance, a pension lump sum or equity in a property that did not exist when the original order was made.

Any property of value can be seized in order to satisfy a confiscation order, and if the court believes that you can pay the order, and you fail to do so, you can be sent to prison in default.

The process can be very complicated

It is in very many cases.  This , and we haven’t even mentioned gifts, hidden assets, corporate veils or Article 1 of the First Protocol of the European Convention of Human Rights.

The real punishment felt by an offender may not be the headline sentence but instead the financial penalty that flows from a confiscation order.

confiscation proceedingsThe rules are incredibly complicated.  We will often find fundamental errors and assumptions being made by financial investigators. Basic errors can lead to incorrect calculations amounting to many tens of thousands of pounds.

In some cases, we can argue that the making of a confiscation order is so disproportionate that to do so would be unlawful.

As a result, before entrusting your case to any other solicitor you will want to ensure that they are up to speed not only on the basics of the offence with which you have been charged, but also in relation to the confiscation proceedings that are likely to flow following conviction.

Contact a specialist in confiscation proceedings

If you wish expert advice in relation to confiscation proceedings then please contact criminal solicitor Julia Haywood based at our Nottingham office.  She provides nationwide advice and representation in relation to such cases.

Please call her on 0115 9599550 or use the contact form below.

Alternatively she can be contacted by letter at our Nottingham office.