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.

Categories
Law

Homelessness – Suitability of Accommodation

Local Authorities are under an obligation, pursuant to s.206 of the Housing Act 1996 to ensure that accommodation offered under homelessness duty is suitable.

There is no definition of suitability. However, under s.210(1) Housing Act 1996, the consideration of suitability must focus on whether or not the accommodation is suitable for the particular person whom the local authority are looking to assist and the family members expected to live with that person. In R v Newham LBC, ex parte Sacupima (2001) 33 HLR 2, the Court of Appeal stated that there was no doubt that the question of whether or not the accommodation is suitable requires an assessment of all the qualities of the accommodation in the light of the needs and requirements of the homeless person and his or her family. It therefore follows that in order to discharge this duty, an authority must first carry out an assessment of the applicant’s requirements. The authority must then secure accommodation to comply with that assessment.

The Homelessness (Suitability of Accommodation) Order 1996 and Homelessness (Suitability of Accommodation) (England) Order 2012 provide that the local authority must also consider the affordability of the accommodation and the financial resources of the appellant, as well as the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the person’s household.

Although the accommodation can be located anywhere in the country, as long as it is suitable, by virtue of s.208(1) of the Housing Act 1996“so far as is reasonably practicable” the authority must secure accommodation in its own area.

In Barakate v LB Brent. County Court at Central London on 16 October 2016, the Court found that *“the concept of suitability can be seen to be not an absolute one, but a relative one, depending on the availability of something closer. This relative suitability must, as I see, have a further important consequence. As soon as one allows the test of suitability to include this relative element, it seems to me inescapable that in cases of far away placements, the test should also include some consideration of the timescale within which more suitable accommodation might be found”.

The case of Nzolameso v City of Westminster [2015] UKSC 22 provided guidance on how local authorities should secure accommodation for applicants. The Court suggested that “It may also be acceptable to retain a few units, if it can be predicted that applicants with a particularly pressing need to remain in the borough will come forward in the relatively near future…..Ideally, each local authority should have, and keep up to date, a policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year.”

Clients should be aware that s.193(5) Housing Act 1996 (as amended) states that, “The local housing authority shall cease to be subject to the duty under this section if – (a) the applicant, having been informed by the authority of the possible consequence of refusal or acceptance and of the right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for the applicant, (b) that offer of accommodation is not an offer of accommodation under Part 6 or a private rented sector offer, and (c) the authority notify the applicant that they regard themselves as ceasing to be subject to the duty under this section.”

It is therefore very important that clients offered accommodation accept the offer so as to avoid the local authority discharging duty. There is an opportunity to seek a review of the suitability the offer, within 21 days of acceptance. This maintains accommodation for the client but allows them to the opportunity to be rehoused should the review be successful.

This blog has been prepared on 17th May 2018 by Ahmar Awan, a Solicitor at MTG Solicitors.

Categories
Law

Immigration Appeal on Human Rights Grounds

The Home Office is known to be very harsh and strict when it comes to judging who is a genuine applicant that satisfies the Immigration Rules and who should be granted a visa. More often than not, an application to the Home Office will have elements of Human Rights claim which the Home Office must take into consideration. If the Home Office refuses an application without due consideration of your Human Rights claim, you will have the possibility to appeal the Home Office decision.

The aim of this blog is to give you an overview of the right to appeal on Human Rights grounds following a Home Office refusal.

Section 82 of the Nationality, Immigration and Asylum Act 2002: Right of Appeal

Where an immigration decision is made in respect of a person he may appeal:

  • the Secretary of State decision to refuse a protection claim;
  • the Secretary of State decision to refuse a human rights claim; or
  • the Secretary of State decision to revoke protection status.

Section 84 of the Nationality, Immigration and Asylum Act 2002: Grounds of Appeal

An appeal under section 82(1) against an immigration decision must be brought on one or more of the grounds set out in the Act. Most importantly, an appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.

Case Law

Baihinga (r. 22; human rights appeal: requirements) [2018] UKUT 90 (IAC): The appellant in this case attempted to appeal an application refused by an Entry Clearance Officer and sent in a notice of appeal to the tribunal. The appellant also travelled to the UK and entered with temporary admission.

The notice of appeal was accepted by the tribunal and a hearing was listed. However, the tribunal decided that the appellant had not mentioned human rights and had therefore not made a human rights claim. On this basis, the appeal was declared invalid.

The appellant attempted to appeal this decision but the judge refused permission on the basis that, because there was no valid appeal, permission could not be granted. The only available remedy was said to be an application for judicial review.

A further application for permission to appeal directly to the Upper Tribunal was ultimately successful.

On the facts of the case, the Upper Tribunal found that a human rights claim had indeed been made:

29. As we have seen, the appellant was putting forward, as reasons for wishing to return, (a) that she had gone to Sierra Leone in 2004 to look after her grandmother; (b) that her grandmother had died, with the result that the appellant was left without any element of family in Sierra Leone; (c) that she was lonely without her relatives in the United Kingdom; and (d) that she wished to rejoin her father and sister in the United Kingdom.

30. The letter from the appellant’s father asserted (a) that the appellant, despite her qualification as an electrician, had been unable to obtain a permanent job in Sierra Leone; (b) that she was being supported by the father; (c) that she had no close relatives in Sierra Leone to give her emotional support; and (d) that it would be easier to support the appellant if she were living with the family in the United Kingdom.

31. Having regard to the guidance, which in this respect we consider properly accords with the meaning and scope of section 113 of the 2002 Act, the appellant’s application was, we find, a human rights claim.

In conclusion, a human rights claim is made where the facts of the case disclose a human rights claim, whether or not the words “human rights claim” are used and whether or not the application is made under the “human rights claim” paragraphs of the Immigration Rules.

This blog has been prepared on 18th May 2018 by Erald Dedja, a Paralegal at MTG Solicitors.

Categories
Law

Victim and Witness Statements in Criminal Proceedings – What happens where the victim or witness wants to withdraw the statement?

Although victims and witnesses play an important role in the prosecution of a criminal case, many do not understand the processes. This also goes for those who find themselves charged with an offence (defendants) and have to appear in court.

The Criminal Defence department at MTG Solicitors is often asked a lot of questions as to what happens when a victim or witness has withdrawn, or intends to withdraw, their statement.

Please note that we will use the term “victim” and “witness” interchangeably in this article.

Giving a witness statement

When someone witnesses a crime happening and reports it to the police, it is often the case that they will be asked to provide a witness statement. The witness will be asked to explain what they saw, either in writing or on video and they will be asked to sign the statement to say that it is true. If the defendant pleads not guilty and if the statement is not accepted as accurate by the defence the witness may be called to give evidence.

Withdrawing a witness statement

Victims and witnesses may decide to withdraw their support for a prosecution for several different reasons. It could be because they no longer want the defendant to face proceedings, have forgiven them, reconciled with them, due to a fear of reprisals, witness intimidation, anxiety caused by a forthcoming court case or because they lack support and information about an impending court case.

Once a witness has given a statement, it is not a matter for them to decide how the case against the defendant should proceed. In practical terms they cannot make the case worse or more lenient for the defendant as the damage has already been done!

Equally, the withdrawing of support by a victim or witness is not the same as that person saying that they have lied. If a victim or witness admits to lying, they are admitting to making a false statement, which in turn can mean they may be arrested and prosecuted for perverting the course of justice.

If the witness wants to go ahead and withdraw their support for the prosecution, they will have to contact the police or Crown Prosecution Service (CPS) directly and make a request to make a statement of withdrawal. The reasons for wanting to withdraw a statement will be carefully looked at by the police to make sure that there hasn’t been any undue pressure applied on that person.

The statement of withdrawal of support should contain:

  • confirmation of whether the original statement given to the police was correct (if the account given in the original statement has to be amended, an application for this should be included)
  • whether the victim has been put under pressure to withdraw or has been subjected to threats or intimidation
  • nature of the original allegation (if not fully covered in a previous statement)
  • victim’s reasons for withdrawing support for the prosecution
  • with whom the victim has discussed the case, particularly anyone who has advised them (a solicitor, for example)
  • whether any related civil proceedings have been or are likely to be instigated (this is particularly relevant in domestic serious sexual offences)
  • the likely impact on the victim’s life and that of other witnesses or people affected if the case continues. 1

Statements of withdrawal of support can subsequently be used as evidence in current or future criminal proceedings, or as evidence within the family court system. These statements are retained as information that might be relevant to future investigations. 2

In some cases, an application for special measures may provide sufficient reassurance to the victim/witness for them to decide to reconsider and to support a prosecution. 3

However, if after receiving a request from the investigator or prosecutor the witness refuses to cooperate, the prosecutor can consider whether to make an application for a witness summons.

The other option at this stage is that the prosecution may decide not to take it any further and drop the case.

Witness summons

Where the decision has been made to continue the case, the prosecution may apply for a witness summons to compel a witness to give evidence. This can be done before the court hearing or even on the day of the hearing itself, and usually when the prosecution has been made aware that the witness is unwilling to cooperate. If a witness summons is required, it will issued under section 97, Magistrates’ Courts Act 1980.

Once a witness has been summoned, they must attend Court. If the witness decides not to attend, then a warrant for their arrest may be made for them to attend court on the day. This means that the police may attend the witness’s home address, arrest them and use police transportation to convey them to court.

The witness can tell the prosecution lawyer their reasons for not wanting to give evidence and then they will decide whether to call the witness or not. Practically, if the prosecution thinks the witness is likely to be unhelpful to them, they would rather not have them there. Consequently, if the prosecution is of the view that there is insufficient evidence without the witness’s statement, then they may discontinue the case and that will be the end of the matter.

However, this is entirely the prosecutor’s decision to make and the witness will still need to attend court and discuss what will happen on the day. Contrary to popular belief, it is not a matter for the witness to decide whether or not the CPS pursue the case and the case may go on even without the witness’s consent. The case could proceed to court if the police think they have enough evidence to prosecute the defendant without the witness by using, for example, statements from other witnesses, CCTV evidence, 999 recordings and medical evidence.

If you have any questions or need expert assistance at the police station or criminal courts, MTG Solicitors are available 24 hours a day.


1. https://www.app.college.police.uk/app-content/prosecution-and-case-management/victim-and-witness-care

2. As above

3. As above

Categories
Law

The Future of Social Care

Social care has been in the news recently and we suspect it will continue to dominate headlines, at least, for the foreseeable future.

But what does “social care” actually mean? Well, that’s the first obstacle right there. It’s hard to provide a clear cut definition, and certainly not within this blog post. One of the reasons that it’s so difficult to define is that social care is very wide and can encompass a lot of things – from child protection issues to applications to the Court of Protection.
The local government’s social services department has responsibility for administering publicly funded social care as set out by Parliament. They provide information and advice, assess and monitor needs, and provide services where appropriate. However, their ability to do so is determined by funding received from the central government. This often creates an imbalance between legislation and implementation.

In recent years, the Government has overseen significant cuts to local government funding. This has resulted in the social care crisis whereby elderly patients are left stranded in hospital due to chronic delays in sourcing adequate home care as well as vulnerable children and young people who are slipping through the cracks.

With a steady rise in population levels, coupled with an increase in life expectancy, the social care system is becoming crippled under this strain.
One of the ways to address growing concerns has been outlined by the Health and Social Care Secretary, Jeremy Hunt, who has set out the Government’s proposals to reform care and support in the much anticipated green paper due to be published this summer. Although the paper has been met with some criticism from opposition parties and voluntary sector bodies, it presents a golden opportunity for the Government to reform the adult social care system.

Whether they seize this opportunity, only time will tell.

This blog has been prepared on 16th May 2018 by Lizan Ghafoor, a Solicitor at MTG Solicitors.