Categories
Law

Time for Change when prosecuting sexual offences

The human rights organization Justice, has published a significant report that examines the prosecution of sexual offences, and in some areas calls for radical changes to be made.

Among the authors of the report is Judge Peter Rook QC, a senior Judge at the Central Criminal Court (the ‘Old Bailey’) and considered an expert authority on this area of law.

The main areas examined in the report are preventing and reducing offending with the attention being turned onto those who view indecent images of children.

The recommendations in the report are as follows:

“Police-led diversion schemes have recently been developed. These seek to address the factors that may lead to offending behavior without the need for prosecution. We have been inspired by the success of these programs to develop our own proposal for a Conditional Diversion Scheme, for individuals who have viewed IIOC. We consider that this scheme will provide the correct intervention to these individuals as quickly as possible, helping to both save prosecution and court resources and ensure reoffending rates remain low.”

When it comes to sentencing, this working party believes that lessons should be learned from the skills-based approach to rehabilitation, which has shown this to be an effective way to reduce reoffending rates. There should be a shift in focus to rehabilitation and more flexibility should be given to sentences to allow them to make suitable orders that allow the individual to rehabilitate effectively.”

In all cases we deal with, we work sensitively and diligently to prepare a robust defence case, we work hard with others to ensure outcomes that work for our clients and the wider community when it comes to sentencing.

To discuss anything to do with prosecution regarding sexual offences please contact us on 020 8754 5577 or email Amandeep@mtgsolicitors.com and we will gladly assist.

Categories
Law

Magistrates Court Trial Procedure

In almost all criminal cases in this country, the prosecution must prove the case against you. The prosecution must prove its case to a very high standard. Before you can be found guilty of a criminal offence, the prosecution must prove beyond reasonable doubt that you are guilty. Only if the court is sure of your guilt can they find you guilty. If there is any reasonable doubt, then you must be found not guilty.

The Court

Unlike the Crown Court, a Judge and Jury will not hear your case. In the Magistrates’ Court, cases are to be heard either by a single Stipendiary Magistrate or by a Lay Bench. Stipendiary Magistrates are qualified lawyers, whereas the Lay Bench is composed of three members of the community who have no particular legal training. The Lay Bench is supported by a Clerk of the Court, who provides them with legal advice when they are coming to a decision.

Procedure

You will first be asked to surrender to the custody of the court. This means that you go into the dock and then you are asked to give your name, date of birth and your home address. Once you have been identified, you remain in the dock until it is your time to give evidence.

The Prosecution Case

The trial starts when the prosecutor outlines the case against you to the court. Each of the prosecution witnesses will then be called. Witnesses first swear an oath to tell the truth, and then give their evidence. Prosecution witnesses are first questioned by the prosecutor (examination in chief) and are then questioned by your advocate (cross-examination) and any other defence advocates if you are jointly accused with another.

Once your advocate (and the other defence advocates) has finished questioning the witness, the Prosecutor can ask some final questions to clarify any of the answers already given (re-examination). The Magistrate(s) can also ask questions at any stage. Once the witness has given their evidence they are generally released and can either go home or watch the trial from the public gallery.

If you have already agreed a witness’s evidence as true, such as a doctor’s statement or a photograph, their statement can be read to the court. There is no point, after all, getting a witness to give evidence live in the witness box if we do not have any questions to ask them.

Once all the prosecution witnesses have given evidence, the case will have reached half time. If the prosecution has not proved its case at this stage, it will never be able to do so because they would have called all their witnesses.

No Case To Answer

Your advocate will have to decide whether to argue that there is ‘no case to answer’. This means that the prosecution has failed to make a good case against you. It will be for the court to decide if your advocate has a good argument. If the no case to answer submission is accepted, you will be found not guilty and the case will be over.

If your advocate decides that we do not have an argument for a ‘no case to answer’ submission, or the argument fails, the case will continue.

Defence Case

You do not have to prove anything. You have an absolute right to remain silent – you cannot be forced to give evidence during your trial.

Since 1997, however, the law has changed. The law now states that if you do not give evidence at your own trial the jury may use your silence against when they decide you guilt or innocence.

If you are going to give evidence in your own case this will be the time that you are called to give evidence in the witness box. You should stand up in the witness box. If you find standing difficult you should ask the judge or the magistrate if you can sit down.

Like all the other witness who have given evidence from the witness box, you will then be asked to swear an oath or affirm. This means that you have to swear to tell the truth on the Bible or the holy book of your religion. If you prefer, you can ‘affirm’ – that is, promising to tell the truth. You can inform our representative if you wish to affirm or take the oath. If you wish to take the oath, please inform our representative or the court usher of the holy book on which you wish to swear.

You will first be questioned by our advocate (examination in chief), and will then be questioned by the other Defence Counsel if you are jointly accused (cross-examination). Once the Prosecutor has finished questioning you, our advocate may ask some final questions to clarify any of the answers already given (re-examination). The Magistrates can also ask questions at any stage.

Once you have finished giving evidence you will return to the dock. If there are any other Defence witnesses, they will now be called in turn and go through the same procedure. When they are finished giving evidence, they will be released and can either remain in court or go home.

Will I get bail during the trial?

If the trial goes over one day or carries on after the lunch break the court will decide if your bail should continue or if you should be remanded in custody (sent to jail). Generally, if you came to court on bail you can expect to be granted bail during the trial. If you came to court from prison you can expect to be taken to the cells during lunch and spend the nights in prison.

Speeches

Once all the Defence evidence has been heard our advocate will close the Defence case and make a closing speech putting forward your case. The Prosecution will not be allowed to address the bench except on matters of law.

Verdict

The Magistrate(s) will normally retire to consider their verdict. They will decide your case by a majority vote. If you are found not guilty you will be discharged and your advocate will ask for your reasonable costs to be repaid to you.

If you are found guilty then you will either be sentenced immediately or the court will order a pre-sentence report. The Court will also decide whether to grant you bail or send you immediately to jail for the preparation of these reports. If you are granted bail it generally takes 4 weeks to prepare these reports. You will be expected to visit the probation officer that will write your report. If you are refused bail it generally takes 3 weeks to prepare these reports and the probation officer will come and visit you in jail.

Categories
Law

Hung Jury

How is a jury made up?

A jury is comprised of 12 people. Before a trial starts in the Crown Court there is a process of jury selection, whereby 12 members of the jury are selected from a ‘pool’ of available candidates that have been selected from the wider community.

What is the jury responsible for?

Once the trial starts, it becomes the responsibility of the jury to decide whether that person is guilty of the offence(s) for which they are on trial. This is the essence of a trial and the essence of what the jury must do.

Acting as a juror is a very serious responsibility and the jury are told by the judge presiding over the trial that they cannot convict a person unless they are sure of that person’s guilt – otherwise known as being sure and beyond all reasonable doubt. The announcement of their decision is the verdict.

Before the jury are asked whether they have reached a verdict, the judge reminds them of the evidence that they have heard and the law that they must apply to the case, which is relevant to what the accused person is standing trial for.

Once the judge has done this, the members of the jury are sent to the retirement room, which is a private room in the court building where they are free to discuss the case and their thoughts amongst themselves.

What is a majority verdict?

In cases where the jury struggles to all agree on the same verdict, the judge may decide that a verdict can be returned if a majority of the jury can reach an agreement on whether they are sure of the accused’s guilt or innocence. This is known as ‘majority verdict’ and normally means that the judge is content to receive a verdict if 10 or more of the 12 jurors are in agreement.

A jury is required to reach a clear conclusion by either convicting or acquitting the defendant. A majority of 10–2 is needed for a verdict, failure to reach this is not an acceptable verdict. If the jury indicates that they will not be able to reach a verdict in accordance with the law, the jury will need to be discharged. In legal terms, this is often referred to as a ‘hung jury’.

What happens next?

In most cases the prosecution can apply to have the defendant tried again. The decision is left with the trial Judge to consider if it is in the interest of justice for the defendant to be re-tried.

There are a number of questions that need to be considered some of which are whether the offence the defendant is being charged with is sufficiently serious to justify a retrial. Whether if convicted, the defendant would be likely to serve a significant period in custody. The wishes of the victim of the alleged offence.

In most case, defence will not be able to resist an application for retrial. However, defence should consider if there has been any abuse of process to allow for a retrial. They should also carefully consider all relevant factors and object to a retrial if able to.

How MTG Solicitors can help you

To discuss anything to do with offences concerning a hung jury please contact us on 020 8754 5577 and we will gladly assist.

Categories
Law

Released Under Investigation

As a result of the introduction of the Policing and Crime Act 2017 the police can no longer release someone on bail for longer than 28 days, unless this has been lawfully extended. The police now regularly release individuals suspected of committing a criminal offence under investigation, which does not mean they are on police bail.

If you are released on bail, the police must provide a specified date and time for you to return to the police station. This was known as being ‘bailed to return’. In this instance, the investigation would be progressing and you could expect that a decision would be made by the date you were required to return to the police station.

Before April 2017, those suspected of committing a criminal offence often found themselves on bail for many months and sometimes years, being given repeated bail to return dates with no real evidence that progress in the investigation had been made.

The Policing and Crime Act 2017 was introduced, which came into force in April 2017. This Act brought changes to the way the police were required to deal with suspects who have been arrested where there is a need for further investigation.

The Act sets out certain time limits for the police to carry out investigations, and it is as a result of these time limits that the police now often circumvent the legislation by releasing suspects under investigation rather than releasing them on police bail.

What does it mean to be released without bail?

If an individual is released under these circumstances, they will have been given a notice which tells them information such as: ‘inappropriate contact with anyone linked to your case, either directly or indirectly, through a third party or social media, may constitute a criminal offence’.

The notice will mention serious criminal offences such as witness intimidation and it will tell the recipient that they could face up to 5 years in prison or alternatively commit the offence of perverting the course of justice, in which case they could face a maximum sentence of life imprisonment.

Suspects can find their lives somewhat on hold, not knowing what is happening, when property is going to be returned, when they can speak to loved ones and family members who are connected to the investigation (directly or indirectly) and most importantly of when they can return back to normal life, hopefully with the matter behind them. During this difficult time, it is important not to simply live in hope that the police will be carrying out an effective and timely investigation. It is important to instruct lawyers who will be in very regular contact with the police to keep you updated as to what is happening, to ensure that they are making progress and to question the need to retain the personal belongings of suspects such as mobile phones, computers, cars and the like. This is how MTG Solicitors approach such cases.

Conclusion of enquiries

Following the conclusion of the enquiries, 1 of the following decisions can be made on the matter –

1. No further action

The Police may decide to take no further action against you. No Further Action (NFA) in effect means that the Police are not taking any further action against you in respect of the allegations against you. This is a very positive outcome, the effect of which is that you are no longer a suspect and the investigations against you will seize.

2. Re-interview

The Police may wish to interview you. This is likely to happen where further evidence (including forensic evidence such as the matching of fingerprints or DNA) has been obtained or where you have been picked out following an identification procedure.

3. Postal Requisition

What is a Postal Requisition and what should you do if you receive one? In the field of criminal investigations, Postal Requisitions have become an increasingly utilised method of requiring someone to attend court. A Postal Requisition is effectively a summons; a letter received in the post that requires a person to attend court on a given date and time to answer a charge or series of charges. If the person who receives the Postal Requisition subsequently fails to attend court on the date and time contained in the Requisition, then it is likely that a warrant will be issue for their arrest.

A Postal Requisition often comes about when a person has been interviewed on a voluntary basis at a Police Station, but can happen after a person is formally arrested, detained, interviewed and then released under investigation. In these circumstances, if the decision is taken by the Crown Prosecution Service (CPS) to prosecute, then notification of that decision to any suspect can be sent by way of Postal Requisition. That will be sent to the suspects last known address. It is not uncommon for prior notice to be given of the decision to prosecute by telephone, but often the Postal Requisition will be received by a suspect completely without notice, and often many months after the formal interview under caution.

If you are in receipt of Postal Requisition, contact us on 02087545577 or 07737372766 (during office hours) so that a mutually convenient appointment is made for you to attend us in person and for us to advice you on what needs to be done next to ensure representation at the forthcoming Magistrates Court Hearing.

If the Police had not already taken your fingerprints, DNA and swabs when you were first interviewed, the Police have the power to take your fingerprints, photograph and a sample of your DNA (by way of mouth swab) if you are charged and required to attend Court.

How can we help you?

The changes to the law and procedure with limiting police bail and releasing people under investigation is to try and avoid people being on bail for lengthy periods of time, however the reality is there is also uncertainty about how long you are left under investigation for, as there is no set time limit.

At MTG Solicitors we make sure that we chase the police regularly to make sure that the police are investigating matters expeditiously. If the police wish to interview you then we can be present during the interview to advise and represent you. If the police take the decision to charge you at the end of the investigation we can represent you at Court.

If you require advice or assistance regarding being released under investigation or any other criminal matter then please contact our experienced criminal law defence team at MTG Solicitors on 0208 754 55 77 or 07737372766 (during office hours).

Mr Teagy Singh Grover Solicitor, Head of Crime Department

Ms Amandeep Purewal Paralegal, Crime Department

Tel: 020 8754 5577 | Fax: 020 8561 2800 | Mob: 077 3737 2766 My profile: https://www.mtgsolicitors.com/solicitors/teagy-grover/ Warley Chambers, Warley Road, Hayes, Middlesex, UB4 0PX

Categories
Law

Homelessness – Challenging Decisions

Despite the fact that some Local Authority decisions can be challenging to comprehend at the best of times, following the commencement of the Homelessness Reduction Act 2017 bringing a challenge against a homeless decision is mostly unchanged. There are some new duties as we have discussed previously but breach of these new duties can still be challenged under section 202 of the Housing Act 1996, in the same way as before.

One new preliminary consideration to bear in mind when dealing with every new homeless case is that since a new Act has come in to force which imposes different duties that will apply to new applicants. There is a fork in the road from the date of its commencement on 3rd April 2018. All applications submitted prior to that date are subject to the old law and new applications are subject to the new law. Therefore, if you find that a Local Authority decision in relation to an application submitted prior to 3rd April 2018 has had the new law applied, or vice versa, that decision can be challenged on the basis of the Authority having applied the wrong law. This might seem unlikely but we have already had a client come through our doors with this very issue, the decision in question was withdrawn and the client was provided interim accommodation.

Breach of Duty

Under the old scheme of legislation, certain decisions from a Local Authority that could be a breach of duty (or duties) owed to homeless applicants by a Local Authority would be challenged under section 202 of the Housing Act 1996. Such a challenge could arise from a negative decision against an applicant or a failure to act in accordance with a duty. Examples of this include:

  1. a discharge of duty decision, or
  2. failure to accept an application from an eligible applicant.

Section 202 of the Housing Act 1996 still applies following the commencement of the Homelessness Reduction Act 2017 so the situation here is much the same as before. However, the introduction of new duties owed to homeless applicants mean that there are new ways that a Local Authority can be in breach of duties they are under. Examples of these new grounds for a section 202 review include, but are not limited to:

  1. Failure to provide an applicant with a written Personalised Housing Plan (PHP);
  2. Failure to comply with an action under the PHP that the council agreed they would carry out;
  3. Failure to apply the new prevention or relief duties; and
  4. Offers of unsuitable accommodation (which are subject to provisions other than just section 202 Housing Act 1996).

This blog has been prepared on 13th June 2018 by Sayim Rezvi, a Paralegal at MTG Solicitors.

Categories
Law

Dreamvar Case – The Case of an Innocent Buyer and the Fraudulent Seller

In a society where fraud is becoming more prevalent, we are warned that vigilance needs to be tighter than ever. As conveyancers, we adhere to strict compliance, regulatory and due diligence rules including ID, residence and bankruptcy checks and meeting our clients face to face to verify their identity but even this is not a safeguard to fraud.

On 15th May 2018, the Court of Appeal handed down its long awaited judgment on the case of Dreamvar (UK) Ltd v Mishcon De Reya (now commonly known as the “Dreamvar case”). This controversial and highly debated case which sought to clamp down on fraudulent sellers has gone further to clarify that both the solicitors representing the seller and the buyer bear liability as to risk in a fraudulent transaction.

The Facts

The buyer, Dreamvar, a small property company purchased a residential property from the purported seller who turned out to be a fraudster. The fraudulent seller presented the driving licence and TV licence of the true owner of the property having obtained it and represented this to his solicitor after having these certified by another firm. The obligations of law firms are to check the identity of their client by seeing the originals of identification documentation or certified copy documentation by another solicitor having seen the originals, the latter of which occurred in this case. The solicitors certifying the ID documents did not pick up on the discrepancies and thus the fraudulent seller was able to present this to the solicitors instructed to carry out the conveyance. The transaction proceeded to a swift completion and the completion funds transferred to the fraudster.

The Judgment

The judgment handed down in this case held that solicitors representing fraudulent property sellers share liability with the solicitors acting for the innocent buyers. This means that responsibility to verify parties extends to both solicitors. Although, the firms were acting honestly in this case, however the case turned on breach of trust by both the firms acting in the normal course of business.

This blog has been prepared on 11th June 2018 by Dhrina Solanki, a Solicitor at MTG Solicitors.