Access to Justice

The CMA produced a report some time ago about the “need” for greater transparency in the legal market.

This is “code” for “there really ought to be more competition so that legal services are cheaper because people tell us they think legal services are expensive and we need to improve access to legal services and our previous attempts have failed in that we tried to encourage innovation and competition through new entrants (known as Alternative Business Structures) but they havent taken up the challenge because there is too much regulation.”

The Legal Services Board promotes this dream of competition and innovation and has insisted taht the various legal regulators make sure it happens.

The Solicitors Regulation Authority has gone for this with some gusto and is suggesting that Solicitors could work for non-regulated bodies so the Solicitor would be regulated but the body might not be and in that way people might be able to access legal advice at a reasonable fee.

None of these organisations address the real issue. Successive Governments have cut legal aid. They have cut the scope of legal aid (ie limited the legal issues for which it is available) and have restricted the financial criteria (ie the income and capital limits have been reduced above which a person cannot get legal aid) and have cut the fees payable to a solicitor or barrister who undertakes such work and introduced a whole series of fixed fees so not matter how much work one does on a file one is paid a fixed fee.

Legal aid gives people power to challenge big business, local authorities, Government and all the institutions of the State.

In a recent Law in Action interview the current Lord Chancellor (who has only just been appointed) got it wrong when he said that legal aid would have been available to the residents of Grenfell Tower in relation to safety issues but no-one applied for it. In fact it isn’t available for anyone in relation to housing safety issues UNLESS there is a disrepair issue which raises an issue about a serious safety matter-which didn’t apply in the Grenfell Tower situation. This explains why no-one applied for legal aid (on which point he was entirely correct).

Legal Aid has been attacked for years as a gravy train for lawyers. As an unworthy assistance to unworthy people who should fund their own cases or who should rely upon the State’s decisions because the State makes correct decisions which shouldn’t be challenged. However statistics in relation to “fit for work” cases show a different picture. People who have the benefit of legal aid can assert their rights. Legal Aid is granted by an independent body The Legal Aid Agency and there are strict rules (quite rightly). Too many people who crticise legal aid dont know how it works or how it is granted and don’t know that only certain law firms can apply for it on behalf of clients or indeed that it is not paid at an hourly rate but on a fixed fee basis.

The problem is that someone somewhere decided the legal aid spend should be controlled and limited and so cuts were made. The myth was created that legal aid had gone beyond what was originally intended for it (which is a lie), that it was easily obtained (another lie) for weak cases (another lie) and that others were held to ransome by the person with legal aid (not in my experience). This means people cannot enforce their rights and so there is limited and resticted access to Justice which means the rich can take whatever legal action they wish but the rest of Society cannot. How can this be justified?

The current BIG LIE is that the UK is awash with whiplash claims and that this must be stopped. However the data and the argument are about as real as the Wizard of Oz. the ABI has conned the Government and deliberately mis-stated the truth. Here’s the evidence in rebuttal http://www.legalfutures.co.uk/latest-news/academic-debunks-claim-uk-whiplash-capital-europe

And if someone not eligible for legal aid (anyone on more than £37,500 a year) has to pay for their own representation, a nasty shock awaits: even if the defendant is acquitted of all charges, there is now no automatic reimbursement of costs. To recoup anything, such defendants must first apply for legal aid, be rejected, and hire a lawyer privately; yet upon acquittal they can then claim back costs only at legal aid rates.

Since the CPS unusually instructed senior Treasury Counsel in his case, Mr Evans understandably felt obliged to use representation of equal quality. I understand that he has been left with a £100,000 bill for which no refund is available, despite his acquittal. If he and his fellow MPs believe that to be unjust, they might want to have a word with their parliamentary colleague who seemingly supports the principle of making defendants pay for the privilege of being found not guilty: the Justice Secretary, Chris Grayling

Motoring Lawyers Are Us

If you have been prosecuted for drink driving, you may have undertaken a web search to see if you can get off. There are lots of on-line “bar-room lawyers” with stories of someone they know who knows someone who has a friend who met someone who read about someone who “GOT OFF”. They then tell you how they did it.

Unfortunately some of my profession have adopted a similar approach and produce on-line guidance and advice which is the written equivalent of “snake oil”. These firms charge thousands of pounds for what will often turn out to be bad advice and an inevitable guilty plea and a large costs bill from the Crown.

How do they get away with it? Well, they rely upon the inability of the Police and the CPS to organise themselves properly. Unfortunately we operate in times when resources are scarce. This means that some Police Forces don’t invest in skilled and experienced staff who can prepare cases properly, who can identify issues early and seek to correct them. It is also the case that often such cases are prosecuted by inexperienced advocates or agents who are given the case the night before or on the morning of the hearing and who cannot prepare and who cannot correct any flaws. The Courts are under pressure to manage cases effectively and, in essence, to finish the case off as soon as possible. It doesn’t really matter if this results in an injustice as money has been saved. Some defendants are advised to take the case to trial in the hope that the prosecuting authorities-aided by a Court eager to finish the matter (it’s a results based industry!!) willmake a huge cock-up and the defendant will be acquitted.

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For some time the Higher Courts have been trying to stop this nonsense. There have been efforts made in relation to motoring cases of all sorts to establish defences based upon a failure of the Police to follow statutory requirements. Some of these are real and do exist-eg the fact that a Police Officer must give a warning to a suspect before requesting samples of breath that failure to do so may lead to a prosecution or a failure to give a sample of blood or urine to a suspect so he may instruct his own expert to carry out an analysis.

The point is however that unless there is real evidence of a failure of the Police to comply with statutory obligations {some times erroeously these are called “technicalities” or a “loophole”, when in fact they are legal requirements} then such arguments will fail-and should not in fact be advanced.

The recent case of The Queen on the application of Hassani v West London Magistrates’ Court [2017] EWHC 1270 (Admin) [CO/5138/2016] makes this very clear and indeed refers to the case of Cipriani where again it was emphasised that challenging prosecution evidence in the hope of showing there has been a failure to comply with statutory requirements must not be undertaken by the defence unless there are real reasons to be concerned about how the Police conducted themselves.

My hope is that the Bar Standards Board and the Solicitors Regulation Authority will read these cases and discipline those who advance such ridiculous defences. I hope that Court Legal Advisers and Magistrates and District Judges will report solicitors and barristers to the relevant Regulator where such arguments are advanced without merit.

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Often Solicitors will write standard letters querying aspects of the Police case without any basis whatsoever and before considering the MGDDA (the record of the intoximeter process) or any statements. Often Counsel will advance such arguments despite the fact that there is nothing upon which to challenege the Police, but because Counsel has been instructed so to do-and is getting a fee. In the meantime the Defendant is being charged huge sums-and the fact he might be happy to spend this money is not in fact the point. Such arguments, based on nothing but hope, bring the Justice system into disrepute.

On the other hand we have had circumstances where people have said to us that they are not speeding and that the reported speed of their vehicle is inaccurate. We have had cases where clearly the speed camera is not working properly. We have had evidence of the defect because the client has independent evidence of speed and location from a GPS system operated by an employer because the client has driven a works vehicle.

The prolem here though is that if the client challenges the Police case in Court he will not recover all his costs because the State only has to pay based upon legal aid rates and private client fees are not based upon legal aid rates. The punishment is 3 penalty points and a fine of £100 or so. Police Forces refuse to accept the evidence that the speed camera is defective and so people plead guilty by post and accept a Fixed Penalty out of convenience and to save money. Of course it suits the Police because the fact that a speed camera is defective is hushed up. It suits the Court service because they haven’t had to spend time trying to address issues of Justice. Again, the Justice system is brought into disrepute because the system is rigged to make challenging the State economically unrealistic for the vast majority of people.

But, I’m talking here about cases where there is real evidence that the systems are not working. That is a huge difference to cases where the defendant and his lawyers hope to find some issue along the way.

There are perfectly good arguments that can be presented to a Court in a proper way to mitigate the consequences of accumulating penalty points or of drink driving or of a speeding offence. It is how this evidence is brought before teh Court that matters. Too many barristers think a good hardship argument is best presented by them with the client merely confirming on oath what the barrister has said. This is bad practice and ought to be discouraged by Court Legal Advisers and The Bench. It is lazy at best and a negligence claim at worst and does not afford the Court the opportunity to assess the defendant properly.

My advice is, avoid the online motoring law experts with flashing websites and promises of defences who charge thousands of pounds. There reported success rates will be as valid as their arguments before the Court.

Instead seek advice, in person, from a local criminal solicitor who charges a reasonable fee (lets say £700-£1500) and who knows what they are talking about. There are plenty of them, in your local town and they aren’t there to rip you off. If they start talking about all sorts of defences before you have explained the circumstances or before they have seen the case papers and they suggest that they can get you off then walk out and try somewhere else.

If there are any High Street Solicitors who wish to form a referral network based upon giving proper motoring law advice that complies with case law and the Criminal Procedure Rules then do get in touch 0191 5676667 michael@emmersons-solicitors.co.uk

 

 

 

 

SEPARATING? WHAT ABOUT YOUR CHILDREN?

If you are married, separating and you have children, it is possible – and indeed likely – that one or both of you will wish to pursue a divorce through the Family Court; you may even wish to reach a Financial Settlement through the Courts – whether by making an application, or submitting a pre-agreed ‘Consent Order’. The arrangements for your children, however, are perhaps less likely to have been dealt with formally by a Court.
Where the breakdown of your relationship was amicable, this can work seamlessly.

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However, as we often see at Emmersons, if there is residual bitterness between separating parents, things can become very turbulent for the children involved. When the adults who share Parental Responsibility for a child no longer get along, it can be very easy for children to become caught in the crossfire, or to be treated like pieces of property – pulled this way and that by adults whose animosity towards each other has made them lose sight of what is truly important.

It is something of a myth that the concept of Parental Responsibility gives you as a parent a strict right to spend a fixed amount of time with your children, or to vary the arrangements for your child without consideration for how this will affect them; the law in this area is in fact far more child-centred, and the focus is very much on the duties and responsibilities of you as a parent to the child, rather than the rights of a parent over the child.

If you are the ‘primary carer’ for your children after the breakdown of the relationship – i.e. they live with you, and you provide their day-to-day care – you might encounter a number of difficulties: your ex-partner might remove the children from school without your knowledge or agreement; they might take the children to spend time with them, and later refuse to return them to you; or, they might aggressively demand that you allow them to spend increasing amounts of time with the children, asserting their ‘joint parental rights’, or something similar.

The difficulty in situations such as these is that you may feel that you have nowhere to turn. As upsetting as the ordeal may be for you and your children, their school, Social Services, and even the Police may be unable to intervene in what is essentially a private matter between adults with parental responsibility; but that’s not to say that you are powerless to act where the arrangements for your children spending time with your ex-partner have become fraught. In circumstances such as these, you could consider making an application to the Family Court for a Child Arrangements Order.

Child Arrangements Orders, made by the Family Courts, cover the arrangements for who a child will live with, who they will spend time with, and for how long. Once such an order is made, a party who breaches its terms could be fined, made to undertake unpaid work, or, in an extreme case, found guilty of contempt of Court, and committed to prison. These orders can therefore provide some much needed certainty for you and your children.
When considering applications of this nature, the Court’s main priority is the welfare of the children involved, and Judges will consider: how capable are each of the children’s parents of meeting their physical, emotional and educational needs? What are the wishes and feelings of the children? And, what is the likely effect on the children of a change in their circumstances?
The Judges hearing Child Arrangements Order applications adhere to what is called the ‘no order principle’, which essentially means that they will not make an order unless there is some tangible benefit to the children involved. An application made simply to put the status quo on a more formal footing is therefore unlikely to succeed; however, if you are worried that the arrangements for your child have become so tense as to be upsetting to your child, you should consider seeking specialist advice.
Clearly applying to the Courts is not something to be taken lightly, and you may feel you need advice as to your other options before deciding how best to proceed. Our family team will endeavour to deal with your enquiries with sensitivity, and will always attempt to resolve things in the most amicable way possible. Many of our clients have found that simply obtaining advice as to their options empowers them to address difficulties as they arise, and we are often able to find effective solutions to our clients’ problems without the need to resort to the Court.

IMG_5349 Jacqueline Emmerson, Managing Director
Should you require assistance in relation to the arrangements for your children, then don’t hesitate to contact us on 0191 2846989 or 0191 5676667.

www.emmersons-solicitors.co.uk

EFER House 137a Back High Street Gosforth NE3 4ET

ACER House 52 John Street Sunderland SR1 1QN

Using a Mobile Phone in the car

Today the penalty for using a hand-held mobile device or other hand-held communication device whilst driving has increased to 6 penalty points and £200 fine.

If you are a newly qualified driver and have held a full UK driving licence for less than 2 years then your licence could be revoked and you have to start the whole licence application process again.

If you are supervising a provisional driver and that driver uses a hand-held mobile phone whilst driving then you too could get 6 penalty points and a fine.

The position of employers is interesting given the legislation s41D Road Traffic Act 1988 refers to those who allow or permit the use of a hand-held device whilst the driver is driving. If your employees drive for a living and you expect them to communicate with you or customers then not fitting a hands-free system (or ensuring the vehicle has one) could lead to prosecution. Apart from that, not training your staff on what is expected of them when they drive for you, is a huge failing and could lead to prosecution or indeed serious harm to your brand.