Summer Madness

IMG_5351Working in the height of Summer brings its own joys. First, there’s less traffic on the road so you can get to work-but better still home from work-much quicker. The warm weather means that tempers can be frayed but its also a great excuse for a few cold wet ones before home time.

In good weather clients seem less rushed, less demanding and even more grateful.

On the down side you are at work when other people you know are on holiday and when you are on holiday-and you are the boss-people still feel willing to email you to ask the most ridiculous questions.

This year we have had the vote on Brexit and we now have the Olympic Games. What a great source of entertainment the Brexit process was but how absolutely fabulous the Olympics is for Great Britain.

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Interest rates are low but here in the North East people are still buying houses and businesses are growing. “Never mind the economy. Let’s get on with life!!”  There appears to be confidence in the economy despite Brexit, the worst fears of the media and the political comedy show that is Labour. Who ever thought politics and politicians could be so funny-if only they had a real job and had to work for a living!!

I’m not Conservative by nature but I do like some of the things Theresa May is doing and saying.

If only Ms Truss, the Lord Chancellor and Secretary of State for Justice would start reforming prisons properly (instead of talking about it) and start resourcing the Justice systems properly then a lot of the mess created by Grayling (aka the worst Lord Chancellor ever) could be undone. In Court, every day, the Crown is ill-prepared, cases have been poorly investigated, probation don’t have the staff to do their job properly and court sittings have been reduced so that cases take a long time to get to trial. The Justice systems are in a mess-and no-one gives a damn. Those who could complain-Judges, the Police, Prison Governors etc say nothing and try to make the system work. The only way to get the Justice system properly resourced is for all of those in it to embarrass the Government. Then we shall get a Justice system we all deserve.

“Despite all that Tories and Labour and LibDems have said about fighting crime, they have all dismantled the Justice systems to the extent that they are barely functioning.” If you don’t believe me, visit your local Magistrates’ Courts-if you still have one-and look at the chaos.

If you want an effective Justice system then Government will have to invest more money

Very few people cry over the plight of prisoners. The fact that there are prisoners in custody serving Indeterminate sentences for Public Protection (even though such sentences have been repealed for new offences) raises little concern. Such prison sentences cost a lot of money and fail to deliver the very basic requirements of the sentence which is that a prisoner has to show that the risk he/she poses to the public has reduced. This is shown by attending courses and demonstrating a new way of thinking. The courses can’t be run in sufficient numbers to ensure that prisoners serve a realistic sentence that equates to what they would now get or which is less than the statutory maximum for the offence if the prisoner had been sentenced for the offence in accordance with normal sentencing guidelines, as opposed to the IPP system. So prisoners languish in jail without their offending being addressed. It wastes time and money.

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In May the BBC’s Radio 4 Today programme raised the issue and you can hear that by clicking this link

Today I read that when Police phone the CPS to get a charging decision they have to wait, on average, 37 minutes. That’s a lot of wasted time-and expense. If the money wasted on unproductive activity was spent on more staff then waiting times would reduce, thus saving time.

But the most shocking thing today was a report about assaults on prison staff, suicide in custody and how many prisoners are wasting time, on drugs, in prison. There’s been a lot of talk about making the Justice systems more efficient. Usually its people who really want to say “we are going to spend a lot less on Justice but we expect the same service, but even if the service is worse it doesn’t matter as we will be spending less on it”. The value of the service, the worth of the service is not considered. It is all to do with £££. Unfortunately this then causes increased costs elsewhere through absenteeism, sickness, claims arising out of injury or delayed release.

What’s also worrying is that the cuts to Justice has resulted in the wrong people being released from prison; ineffective trials; increased assaults on Prison Officers; acquittal when there should not be one; innocent people trying to represent themselves in Court; a lack of experience and timely consideration of evidence; the failure to process cases effectively; in short, money and time wasted and people expected to do a lot of work in too short a period of time.

The response to this from the Legal Aid Agency has not been to query the cuts or the determination by the Ministry of Justice to introduce a more “efficient” system

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“How embarrassing!!”

by cutting resources but to introduce a new clause for the 2017 Crime Contract by which the LAA can end a contract if the provider embarrasses the LAA and brings the LAA into disrepute. What a joke!? Instead of worrying about Justice and access to Justice and the administration of Justice the LAA is concerned about its own reputation. If the LAA was a human being, such thinking would make one conclude it was sociopathic.

 

Welcome Lord Chancellor

We have a new Lord |Chancellor/Secretary of State for Justice. Rt Hon Elizabeth Truss MP was appointed recently as part of the new Theresa May Cabinet.

I have absolutely no problem with a woman as Lord Chancellor (and yes, even though she is a woman she is Lord Chancellor). However, yet again, for the third time in a row, we have a non-lawyer filling one of the great legal posts of State.

She has already said that she wishes to reform prisons-don’t they always?-and to reform Courts-don’t they always?-but what Liz Truss really needs to do is to ignore the bureaucrats and consultants and advisers that populate the MoJ and talk to people who work in prisons, in probation, in the courts, at CPS and in private practice.

Too much reform of “Justice” has been piecemeal and politically motivated. There needs to be a consensus as to what Justice looks like. A definition of key reform terminology would also help eg “efficiency”. Too often the term “efficiency” is used to mean “reduction in resources” which, of course, does not necessarily help improve efficiency. It would help if a vision of the Justice system could be created in open dialogue with those at the coal-face and then the resources found to deliver that vision. Justice should be funded to the extent that the system requires to deliver Justice. Without proper definitions of key terms no Lord Chancellor can guarantee that the system over which they preside delivers Justice.

The LAA has announced a new contract for 2017. There will be a totally unnecessary non-competitive tendering process (which costs more money than is necessary for the award of a legal aid contract). Most legal aid fees are fixed fees. There is no need for the Legal Aid Agency at all. Legal aid could be granted by the Courts/Tribunals and any bills requiring assessment could be assessed by the Courts/Tribunals.

One new clause appearing for the first time in the new contract is one which prohibits providers from embarrassing the Legal Aid Agency. What this might be used for is to prevent criticism of the Legal Aid Agency. However my guess is that it is a way to address the issue of those Solicitors who share fees with clients, who make payments to third parties for work and who use non-duty solicitors to intercept clients at court and represent them when the client would, ordinarily, be represented by the Duty. It will be interesting to see what happens if the LAA tries to argue that open criticism of how it undertakes its role as commissioner of public-funded legal services causes it embarrassment such that the critic should lose his right to undertake legal aid work.

What would be much more helpful would be if those in charge at the LAA stopped behaving like poodles and instead spoke openly about how bad the Justice system is due to lack of resources and the affect this has on people.

 

Justice is about the defendant

I listened to the Home Secretary speak at the Police Federation Conference the other day. Amongst what she said there was little with which to disagree-except she described the Police as the “Custodians of Justice”. Later someone from the College of Policing emphasised the factual basis of this statement.

One of the reasons that cases collapse and the acquittal rate in the Crown court is at 40% is because the focus forced upon the Police is to deal with issues which should not be a priority. The role of the Police is to investigate crime and to maintain the Queen’s Peace. The statutory obligation to investigate cases is set on in the Criminal Procedure and Investigations Act 1996

Section 22

(1)For the purposes of this Part a criminal investigation is an investigation conducted by police officers with a view to it being ascertained—

(a)whether a person should be charged with an offence, or

(b)whether a person charged with an offence is guilty of it.

This is what the Police’s role is. They are NOT Custodians of anything. Judges, lawyers and juries are “Custodians of Justice” and the Police Officers and Staff, Probation Officers and Staff, Court Staff and Prison Officers and Staff as well as NOMS and Parole Board Members and Staff upon which our Justice system relies are the Servants of Justice.

Victims of Crime deserve to be treated better-but that should not be the Police’s responsibility. There is no reason why the Government should not finance and support Victim Support Services so that access to support services such as the NHS can offer or other charities can offer are free and available to all victims of crime.

The Police should be impartial. The Crown Prosecution Service can take account of a Victim’s views on their case and apply the variety of Codes which guide decision-making as to whether cases should be charged, how they should be charged and whether they should continue.

Too often the Police are called to a domestic incident and remove the male about whom there has been a complaint. Barriers to a proper investigation as envisaged by CPIA section 22 are created by domestic violence protocols and policies which have been forced upon the Police. Far better would be a Victims’ Legal Service which could advise victims of crime and apply for injunctions eg Restraining orders and Non-Molestation Orders and Domestic Violence Protection Orders and compensation on a Free basis (ie without a fee to pay and without charge to a victim of crime), funded out of taxes and costs orders made against convicted Defendants. The Police should not have to worry about being a victims new best friend. They should be engaged in gathering evidence in an objective, impartial manner. In my view current applications for DVPOs are actually made to protect the Police from criticism and are granted by Magistrates for precisely the same reason all because for the minute we are obliged to take domestic violence seriously. Remember ASBOs?

We need a system which is based upon consistent application of the law rather than on sipping up the latest flavour of the month. In this way victims and defendants will get better Justice and there will be less acquittals.

The fact is that the system is so under-resourced that it is a miracle that anyone is convicted. The manner of case investigation, preparation and prosecution-along with intrinsic inefficiencies in the system which digitalisation alone won’t cure-make defence advocates look great as cases splutter from one poor, late decision to another before the case is dropped or cracked ie a lesser charge is accepted and pleaded to.

Look at the latest Quarterly Statistics and read the report thoroughly. Instead of believing the propaganda put out by the Ministry of Justice and others, understand that the Justice system has collapsed {have a read of this report too: https://www.nao.org.uk/wp-content/uploads/2016/03/Efficiency-in-the-criminal-justice-system-Summary.pdf } and is being kept alive by the oxygen of goodwill which has always made the wheels turn smoothly. The problem is, that the oxygen is running out too. Proper resources across the Justice Systems are required.

 

Why do I need a Lasting Power of Attorney?

You may wonder why it is necessary to have a Lasting Power of Attorney, what benefit would this be to you or your family?
There are two types of Lasting Power of Attorney, one which allows an attorney(s), appointed by you,  to deal with your financial affairs on your behalf and another which allows your attorney(s) to make decisions about your medical care or living arrangements. The idea is that you appoint attorneys now and give them directions as to how they should handle your affairs if you are unable to do so later.
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Spring, Summer, Autumn, Winter, Spring
Many of you will be aware of the fact that Powers of Attorney are often used by relatives when a person loses mental capacity. This could be following a stroke or vascular dementia.  But have you ever given any thought as to just how this is possible?
The answer is that the donor/ patient planned ahead. Most people have no idea whether they are going to lose mental capacity. It is a little bit like insuring your home. There may or may not be flooding or theft. But if there is, and you are insured,  you know that your insurer will look after you. In the same way that you would not risk leaving your home uninsured, Emmersons Solicitors Lasting Power of Attorney clients would not risk a situation where there was no one able to manage their affairs if they could not do so themselves.
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Through the maze
Many of our clients attend to a number of issues at once. They make their wills, they may make lifetime gifts at the same time, organise how their home is owned, arrange for the storage of their important documents and attend to a Lasting Power of Attorney. Usually this will involve two visits to our office. However, once dealt with our clients often comment that they are relieved that they have planned ahead and sorted out their affairs.
Notably, it is still possible to make a Lasting Power of Attorney even if you have been diagnosed with Dementia. Contact us if you are worried about this.
What are the likely consequences of not making a Power of Attorney?
Let’s imagine that your father lives alone, he owns his own home and all of his investments and bank accounts are in his sole name. Now imagine that he has a stroke and loses mental capacity. You set about trying to work out where he is going to live. You may decide that he is going to live with you. You decide that as he will not be able to live in his own home again it should be sold. Or it may be necessary for your father to move into a residential care setting. In which case someone has to authorise payments from your father’s bank accounts to a care home. Without a Lasting Power of Attorney you cannot do this.
In order for your father’s home to be sold someone has to be able to instruct estate agents and solicitors. Someone will have to sign the necessary legal documents. You are not an owner of your father’s home and therefore you cannot sell his home. Your father no longer has mental capacity so he cannot sign the legal documents which would enable the sale to take place.
Had your father appointed you as his Attorney, then under the circumstances you would now be able to step in and deal with sale of his home as well as the receipt of and investment of the sale proceeds. You would also be able to run his bank accounts and thus pay for his care home fees.
All is not lost however. You could still apply to The Court of Protection to become your father’s deputy. A deputy is a person appointed by the court to manage the affairs of a person who is, because of mental incapacity, unable to do so for themselves. This will take a number of months to achieve and you must prove to the court that you are a suitable person to take over your father’s affairs. It requires the completion of some rather lengthy forms including details about your own finances. It is also necessary to prove to the court that your father has lost mental capacity. At Emmersons Solicitors, we are frequently called upon to make such applications by people in your situation. Once granted there is also annual insurance to pay and at any time in the future you may have to be interviewed by a Visitor appointed by the Court of Protection. Their role is to investigate how you are managing your father’s monetary affairs.
Ultimately however, the court may determine that you are not a suitable person. At Emmersons Solicitors we have had a couple of cases recently where the court have determined that the local authority should take over instead of relatives. How would your father feel about that?
In short, the point of a Lasting Power of Attorney is to enable your relatives or friends to help you run your affairs if you are unable to do so. You will have peace of mind knowing that you have appointed people you trust. They will not have the added stress of dealing with the Court of Protection at a time when they are trying to help you with your care and housing needs. They will not have to worry about being interviewed by a Court of Protection Visitor.
If you expect your relatives or friends to look out for you in your hour of need then you should make this as easy as possible for them.
Act now in order to help them help you.
If you require any help or advice relating to this topic then please don’t hesitate to contact us on 01912846989 or 01915676667 or helen@emmersons-solicitors.co.uk

Do you cut your own hair?

There has been a huge rise in Litigants In Person, that is people representing themselves at court. Many people are no longer entitled to legal aid for divorce or separation proceedings and so they decide that they will represent themselves. However, often this isn’t necessary as there is now litigation funding in place to help you. In effect it is a loan repayable when you obtain your Settlement monies.

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Usually I have no idea as to how these folk fare in the court arena. I had assumed that the judge would patiently help them through the process, which is not an easy process from a layperson’s point of view. However, more recently I have been told about judges being less than helpful and sometimes rather rude. I have friends who are judges and I know how frustrated they are. It is not helpful when the court lists five contested hearings for one judge in a day. If those cases involved solicitors there is a good chance that some, if not all, would settle in the court corridor following some initial guidance from the judge. When there are no solicitors to help the clients they are far more likely to take up most of the day presenting facts that may be more emotional than legal.
A number of people who I know, or know of, have had some rather bad experiences using the court system on their own.
In one case a man, who I shall call Steve, decided to leave his wife for another woman. He didn’t want to use a solicitor and asked his wife to obtain precedent documents from her lawyer friend. The friend sent Sally a blank document showing various clauses that would be contained in an order negotiated via Solicitors. I was therefore shocked to find that Sally had told Steve that he had to pay monies to her under every clause in the document. Steve had for years paid far more than any court would ever have expected him to pay. He had probably overpaid by about £15,000! All because he thought it would be cheaper to take part in DIY divorce than obtain help from a Solicitor at the time.

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Another person I know has been battling on with, what to me, is a fairly simple Financial Settlement case following his divorce. I have advised him that even though he can’t afford up front legal fees he could easily obtain a funding loan which would be repaid once he receives his Settlement. He could even make monthly payments to us if he were our client. It is glaringly obvious how the case would settle if there were two solicitors involved. I can’t believe how many hearings my friend has attended. So far he has upset the judge by being rude, this led to an order being made against him which has cost him a few thousand pounds. He has failed to produce documents, then he produced the wrong documents. The judge must be beyond irritated by now.
Why Should You Instruct a Divorce Solicitor?
Obtaining legal advice at an early stage can help to put your
mind at rest, it can help you to plan ahead and it can ultimately help to reduce your legal costs. For the price of a fixed fee interview you can learn the steps that you should take to help yourself. It may be that your partner is running up debt to impress a new partner.

Early advice on how to protect yourself could actually be the difference between you saving or losing your home.
At Emmersons Solicitors Family Law Department we always present our clients with a range of options to try and keep their cases out of the court process. The second case listed above would probably have settled a year ago if we had arranged Round Table Meetings with the couple in question. They are clearly still angry with one another, the chance to vent their anger at the start of the first meeting would probably have cleared the air. If not then the couple could have been referred to a Family Therapist.
At Emmersons we use a Family Therapist who will see a couple together on one or more occasions. The focus is on helping the couple to work through their issues, often issues from their past that they don’t realise are causing their current behaviour. This has been useful for a number of our clients. They have then been able to discuss their settlements and the needs of their children in a clearer, less angry way. Ultimately they have avoided court and have achieved faster resolutions thus enabling them to move on with their lives.
In many other cases we have been able to obtain all relevant financial information in relation to both parties, we have summarised the same, formed a view, requested information which has been hidden (we can often spot this from entries on bank statements or credit cards) and moved on to a negotiated settlement without the need for contested court proceedings or even meetings between the parties.
Ultimately, the danger to you of not instructing a solicitor is that you don’t know what you don’t know!

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If you would like an initial chat with one of our Family Solicitors then call us on 0191 2846989.