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ADR POLICY

14
October 2015
Category ADR POLICY




We recognise that Alternative Dispute Resolution Regulations have implemented ADR/EDR Directive 2013/11/EU to promote alternative dispute resolution as a means of redress for consumers in relation to unsatisfactory services. We have however chosen not to adopt an ADR process and if you have any concerns about the services you receive from this firm you should contact the firm's Client Relations Manager.

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DAVID MCLAUGHLIN - SOLICITOR

14
October 2015
Category STAFF
 
 

It is with great pleasure we announce that David McLaughlin has finished his traineeship.

David progressed exponentially, particular in the second year of his traineeship. He took appearing in court in his stride, and is already exhibiting court skills which  have drawn praise from Sheriffs and Court officials.

He has a client following which is well beyond what should be expected for such a young lawyer.  Clients have commented on his friendly manner and the clear way in which he expressed himself both to clients, and in the court.

David has become an integral part of the firm.  He has a genuine interest in the law, and the way it can be applied to his clients' cases for their benefit.  He is never afraid to ask questions or discuss issues, and this contributes to the service that not just David, but the whole firm are able to provide.

We are delighted that David wishes to continue working at Central Court Lawyers following his traineeship.

The training of prospective lawyers is a great responsibility, but is also interesting, rewarding, and fun.  CCL are proud that David is the 5th lawyer to complete their traineeship with us, which we believe demonstrates our commitment to the future of our profession.

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THE LEGAL 500 2015 - IAN BRYCE

17
September 2015






CENTRAL COURT LAWYERS are delighted to announce that IAN BRYCE, SENIOR SOLICITOR-ADVOCATE, has been recommended in THE LEGAL 500 2015.

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THE LEGAL 500 2015

17
September 2015








We are delighted to announce that CENTRAL COURT LAWYERS has been recognised for their expertise in this year's THE LEGAL 500.

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LAW AWARDS OF SCOTLAND 2015

07
September 2015









CENTRAL COURT LAWYERS are delighted to announce we have been shortlisted in two categories in THE LAW AWARDS OF SCOTLAND 2015.

The FIRM has been nominated in the category CRIMINAL LAW FIRM OF THE YEAR and DAVID MCLAUGHLIN has been nominated in TRAINEE OF THE YEAR.

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Staff Announcement

01
September 2015
Category STAFF




We are delighted to announce that our solicitor, Meghan Brunton, gave birth to a healthy baby boy on 10 August 2015. Jude Daniel James Neville was born at 2049 and weighed a perfect 8lb. Meghan  and her husband, Stephen, brought Jude in to meet the team on Friday 28 August 2015, and judging by his lungs, he is a criminal lawyer in the making.

Our love and best wishes to Meghan, Stephen and Jude.

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TRAINEESHIP PART 8 "YOUNGER THAN YESTERDAY"

06
February 2015





The applause dies down. I bow, and leave the court room, having conducted a crazy day of duty in the JP court. The applause came from a sole observer, an admirer perhaps, stationed in the back row; no doubt a participant in the proceedings that remain outstanding.

The preceding two hours consisted mainly of frantically running (literally) in and out of the court, taking instructions from relative strangers and standing up on their behalf to say their piece.

Come to think of it, the applause was more like a slow hand clap. Why was this? Why was he staring at me with such malevolence?

I return to the office for part two of the day, which consists mainly of introspective reflection.

I am advised by a colleague that my admirer was most likely representing himself and, because I went before him and took over an hour, he had to sit there in that stuffy, doom-laden place for all that time. Poor soul. I sympathise but he should have got a lawyer. And he should have been done for contempt.

The next day, I see him outside Livingston Sheriff Court. He appears to want to discuss my verbosity further. I explain that I would, but we are still duty at the JP Court. Of course, if he wants to wait until I am finished, we can talk about it. He recognises the futility of his anger. In fact, I detect a trace of sympathy as he realises that while he spent one awful day of his life in the JP Court, I am likely to be there every day for its unremitting churn.

I sit at the back of the courtroom. A solicitor bangs on for an hour and a half. Einstein’s theory is disproved, as time slows down, before stopping entirely. Eventually, the solicitor runs out of things to say, or different ways to say the same thing, and I am on. This time, I will be quicker…

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Central Court Lawyers are seeking a new lawyer

04
November 2014





Central Court Lawyers are seeking a new criminal lawyer to join our busy and motivated team. The succesful candidate will appear in the JP and Sheriff Courts, as well as preparing and instructing in High Court cases.
The position would suit a second year trainee wishing to assign, or a newly-qualified solicitor. Ideally, candidates will have some experience of criminal court work, but this is not essential.

Please send application letter and cv to:     ianbryce@centralcourtlawyers.co.uk

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I just wasn't made for these times

30
June 2014
Category LEGAL AID




As the second anniversary of the merger of Central Criminal Lawyers and McGovern & Company to form Central Court Lawyers approaches, it seems an opportune time to assess the impact of this business and professional change.
 
For over twenty years, I practised as the sole principal of McGovern & Co carrying out criminal legal assistance work. I did so with one secretary and worked throughout from a small dilapidated upstairs office in Wishaw. Expertly assisted by my secretary, I worked extremely hard and enjoyed a degree of success as a result.
 
However in order to be successful, I required to offer a level of service and representation not just in courts throughout Scotland but latterly and increasingly at police station when suspects were being interviewed by the police. All of this against an increasing complex evidential and procedural backdrop to the practice of Scots criminal law.  As a result the role of the criminal practitioner has become increasingly demanding in terms of the service provision required, the administrative responsibility that goes along with it and crucially the requirement to be permanently on call. The prospect of the sole practitioner is a challenging life balance which involves juggling the ability to properly represent clients with the demands of running a business for profit and the need to retain an appropriate quality of life out with professional practice.
 
I reached the view that this balance could not be properly achieved by a sole practitioner model despite the success of my business since 1991. I felt that when the full implications of the Cadder case worked their way through the criminal justice system (and this has still to happen) it would be extremely difficult for a sole practitioner to offer the range of high quality services to clients that business and professional pressures would demand. Indeed as a member of the Scottish Legal Aid Board's, Criminal Quality Assurance Committee, I am very aware of the importance of ensuring that access to justice is protected by maintaining professional standards that meet realistic quality thresholds.
 
Whilst I respect and admire those sole practitioners who strive to provide excellent representation for their clients, I decided that joining an established, successful and larger firm was strategically the correct step to take.
 
By merging with a much larger and very well run firm, I required to adapt my working practices much more so than the partners and colleague whom I joined. Essentially I was surrendering the working autonomy that I had enjoyed for many years, some of which was frankly idiosyncratic but in return gaining a professional support system far beyond anything available to a sole practitioner.  The use of IT (check out www.centralcourtlawyers.co.uk), capital investment in the practice along with a team of lawyers ranging from a senior solicitor advocate to trainee solicitors, allows a level of service to be provided which I could not have competed with. Indeed it is a pleasant bonus to watch how our young legal assistants work with an enthusiasm and a motivation that I suspect many senior colleagues have long since lost.
 
It should also recognise that working in a more efficient and professional environment has clear benefits for our justice partners in Police Scotland, the Scottish Court Services and the COPFS. As all sole practitioners know, the daily court diary is a process of delegation and trying to synchronise cases calling in different courts. Police station attendances are an onerous occupational hazard to be accommodated by ad hoc arrangements. Like most sole practitioners, I did my best but sometimes the demands were too difficult to meet in a way that did not cause unnecessary delays in the administration of justice.
 
However being a partner in a large practice doesn't necessarily reduce the stress and rigours of many aspects of a criminal practitioner's life, the market within which we operate is grossly inefficient with an oversupply of practitioners competing for a reducing caseload of work with pressures on fee rates unrelenting. These market failings result in a profession in which it is difficult for young graduates to enter and even more difficult for senior colleagues to retire from. Hopefully changes will be made to improve these business inefficiencies.
 
Whilst still working hard, I am now able to enjoy the phenomena of a fortnight's summer vacation and free time uninterrupted by police station visits. Central Court Lawyers, 24/7 helpline service (0845 605 9990permanently crewed by our legal staff on a 4 week rota  is probably the biggest benefit of the merger for me but at the same time the best service offered by the firm to our clients.
 
That's not to say that it has been all plain sailing. A large firm throws up a range of problems which escape the sole practitioner model. The management of staff, resources and financial planning are issues that demand regular attention. As a sole practitioner, I was able to run my firm essentially to suit my own convenience, whereas now as part of a management team there is a collective responsibility to ensure that the firm operates within consistent financial parameters to meet the ever increasing costs associated with running a large law practice.
 
In conclusion, I am aware that my choice would not necessarily suit many of my colleagues or indeed be a choice available to them,  it has however been a rewarding choice for me and one I would happily commend to any sole practitioner looking for a different way of practising.

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A Youthful View

24
June 2014
Category MISC




As a third year law student at Aberdeen University, I have been fortunate enough to obtain work experience in a local law practice specialising in family law.  Recently and in contrast, I had a week's work experience with Central Court Lawyers, based in Wishaw and Livingston.The work of a family law firm mainly consists of meetings with clients, mediation issues and as little time spent in court as possible! However the world of a criminal law firm is entirely  different - I spent the whole week in court watching the lawyers at Central Court Lawyers  and barely any time in the offices at all.
 
It was fascinating seeing the law that I've studied (crammed) for exams put into practice. The client meetings were somewhat different - in Aberdeen, the clients of the family law practice come to our glamorous office for hour long appointments whereas at CCL although they have lovely office facilities, the client contact involved mostly meetings with them before their case was about to call.  It was fascinating watching how well and professional Central Court Lawyers handled these sort of situations.
 
One of the highlights of my week was a visit to HMP Addiewell and it's safe to say you don't get the opportunity to do that working at a family law firm. Anyone who knows me can tell you how obsessed I am with prison documentaries and so you can imagine how exciting it was for me experiencing the real thing (sort of!) It gave me a sense of reality but certainly hasn't put me off pursuing a career as a lawyer.
 
I knew criminal lawyers worked under pressure and took on last minute cases but my week at CCL has made me realise the extent of this - getting a case on Friday and it going to trial on Monday! The whole firm is just so professional and coped with anything thrown at it.
 
At my family law firm the only visits to court that I would make, are to drop off case paperwork from the office. During my week with CCL not only was I given the opportunity to watch CCL lawyers conduct cases from High Court trials to Sheriff Court cases but the whole process was explained to me by them which helped make sense of all of the things happening in front of me. I watched a jury trial take place and then got to meet the Sheriff who gave me some tips for the future! Not only that but I met a lot of lawyers who were more than happy to share their experiences and give some invaluable advice.
 
This isn't really a civil/criminal comparison but I was impressed with CCL's use of technology, our firm has a website but that's about as far as we stretch - no Facebook or twitter. At CCL everyone has iPads and iPhones which is vital since they are always on the move and communicate with each other throughout the day by email.
 
It's safe to say that after my week at CCL I've learnt a lot more about criminal law than I originally knew.
 
Seeing it in practice was a great experience and although it isn't always like the glamorous trials you see on the American TV shows it's still completely fascinating and exciting (for me anyway)!
 
Written by Megan Abbott, third year law student at Aberdeen University.
 
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Don't Be Confuseddotcom By Your Insurance Company

28
May 2014




As most people are aware, it is a criminal offence to drive a vehicle without insurance (section 143 of the Road Traffic Act 1988).  The offence also covers not just circumstances where someone is driving a vehicle but where someone:-

uses, causes or permits a vehicle to be used on a road or other public place

That is to say that even where a vehicle is parked on a public road, the user may be guilty of this offence if the vehicle is not insured. 

Our Road Traffic specialist team at Central Court Lawyers have noticed an increasing number of legitimate drivers who are driving their vehicles believing that they are insured, completely unaware that their insurance company has cancelled their policy.  This is usually due to a problem with payments or because they did not receive proof of a no-claims bonus.  However, as a result, these drivers are facing a criminal prosecution, with points on their licence and in some case disqualification from driving. 
 
The increase may be as a result of the increasing number of online insurance companies, where policies are taken out online and no further documentation is received from the insurance company.  Drivers are therefore driving in the belief that everything is ok and in fact, for some reason, the insurance company have cancelled their policy and as a result these drivers are committing an offence. 
 
It is therefore important that all drivers are vigilant and regularly check that they are insured, especially at the outset of the policy. 
 
It would seem unreasonable for someone to be convicted of this offence where an insurance company cancels a policy, without prior notice or without a valid reason. However, driving without insurance is a “strict liability” offence, which means that if it is proved that there is no insurance cover in place, you will be committing an offence regardless of the reason.  The onus is upon the driver of the vehicle to comply with the Road Traffic Act by making sure that their insurance is in order before they use a vehicle.

It is also an offence to let someone drive your car in the knowledge that they have no insurance. A common example of this is where an employer requires their employee to drive a work's vehicle when they are uninsured.  In this scenario, the employer will be prosecuted for “causing or permitting” that person to drive without insurance. 

If you are convicted of driving without insurance, your licence can be endorsed with between 6 to 8 penalty points and you can be fined up to a maximum of £5,000. 
 
The UK Justice Secretary, Chris Grayling this month (May 2014) announced plans for a full review of all driving offences and penalties, which includes offences committed by un-insured drivers and the likelihood is that the above penalties may be increased in the near future, which gives more reason to be more cautious.
 
It is important that genuine law-abiding drivers know their rights to avoid unwanted points and fines. 

Mitigating Circumstances/Special Reasons

In some circumstances, the Court may not endorse your licence with penalty points or issue a fine where is can be proved that there are “special reasons” for doing so.  These “Special Reasons” will usually relate to the circumstances surrounding the commission of the offence. This is a fairly technical argument, and the law is complex. Our experienced legal team at Central Court Lawyers can assess the circumstances and advise you whether such reasons apply to your case. 

Examples of successful “special reasons” arguments include where an insurance company cancels a policy without good reason, where they have failed to provide proper notice of cancellation, or where an owner of a vehicle allows a friend to drive their car after they provide evidence that he/she is insured to drive the car and it turns out that he/she is not insured. 

The prospects of  a successful “special reasons” argument depends on each individual case and Central Court Lawyers can provide you with the appropriate advice tailored to your individual circumstances. 

If you find yourself charged with this offence and you genuinely believed that you were insured to drive, then our specialist team can assist you with this. 

If you are reading this and believe that you are insured, you may want to double-check the position before your next journey.    

We hope that you find the FACT SHEET to be of assistance to you and please remember that our team of solicitors at Central Court Lawyers have specialist experience in all types of road traffic cases. If you require any further information in relation to the above, or if would like any advice or assistance in relation to any road traffic matter, please contact us on our 24 Hour Hotline - 0845 605 9990 or email us at enquiries@centralcourtlawyers.co.uk.

Please note that the above reflects the law as at 26 May 2014. For the most up-to-date advice tailored to your own specific circumstances, please contact us.

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The Second Trainee Part 3 - What Can I Do For You?

07
May 2014






A guide to recognising your tweets: My legal guide to social media

Firstly, I hope that you enjoyed last week’s blog from the original CCL trainee. I like to think that we (trainees 1 & 2) provide a flavour of what life is like at the start of a legal career. I have been told that there are many students and potential trainees who follow @centralcourtlaw and as such, I would like to use this blog to reflect on the value to new lawyers in using social media.

I have come to understand that social media is a multifaceted beast and I will therefore focus on how my use of twitter has so far impacted on my legal career.

Some lawyers bemoan the use of twitter and many others don’t care. However I have honestly found it to be a great tool in almost every aspect of my legal life. When searching for a traineeship,  I  always felt that I was on the cusp of an offer but for reasons that I did not fully understand unable to “close the deal”. Like many graduates seeking a traineeship, I had little real understanding of the profession that I was desperate to join. It wasn’t until I stumbled into twitter that I found a fantastic resource giving me access to a range of legal contacts which would have been otherwise firmly beyond my grasp. It therefore provides fast track legal education.

To interact with such contacts on a daily basis was, and is, a wonderfully enabling experience. Twitter provides a platform without fear or fear for an individual, a law firm or any organisation to set out albeit in 140 characters, messages relevant to their profile. It is essentially egalitarian in structure although a sense of hierarchy prevails dependent on the number of followers that a user is able to attract.

Therefore any law student can have the opportunity to communicate with some of the country’s biggest law firms, best-known lawyers and Queen’s Counsels, the sort of contact which was impossible to consider before the advent of such technology. Attracting followers is the key issue and this can be done in part by following a large number of others in the hope that they will reciprocate. Alternatively followers can be attracted by topical, relevant and occasionally witty comment by you on any subject that takes your fancy.

As an inexperienced lawyer, there is a vast pool of very useful information regarding Scots law. This can be by way of the various blogs writing on legal issues or recent written legal judgments from our higher courts. Professional concerns such as access to justice are also very popular and at times controversial topics.

I would strongly recommend all law students and graduates to join twitter and follow the individuals, firms and other bodies all actively using twitter as part of their legal outlook. My own firm’s account,@centralcourtlaw is as good a place as any to start. (plug done !)

I now spend much of my free time waxing lyrical and asking questions of the legal tweeters/tweeps/legal twitteratti. In this sense, I can’t recommend twitter enough and the legal profession seems to agree with me as more and more articles in various publications mention its growing popularity amongst the profession, Twitter seems to be trending and who doesn’t want to be trendy!!

A word of warning however (if one was needed in an age when a celebrity’s twitter gaffe instantly reaches smartphones all over the world) is that if you are going to use twitter please remember that you are communicating in the public domain. The criminal and indeed libel laws apply to the tweet send as you lie in your bed fighting sleep. Whilst this is not a concern for the majority of legal tweeters who mainly discuss excellent points of law, musings of the day or a mixture of both, I would add that “you can’t stop the signal”. My twitter avatar is my alter ego as @YoTedbo  and I should also warn of the very real danger of Dweeting which is as it sounds, mixing tweeting and drinking alcohol. It’s just not a very good combination. Whilst you may feel touched by the late night hand of genius, it never reads as well the next morning.

If this blog helps those searching for a traineeship by highlighting the potential of twitter and some of the risks then I will be very happy at having lent a helping hand.

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Traineeship Part 7 "Free as a bird"

28
April 2014





I pace up and down, staring blankly at the empty corners of the spartan room I currently inhabit. The guard at the other side of the perspex glass whistles a tune and rattles his set of cast iron keys around his index finger in a mocking fashion. He ceases momentarily, smirks,  and says something which I can’t make out into his walkie talkie. I hear laughter crackle from the other end of the line.

Then the key rattling begins again. My composure leaves me.

 “Please,” I beg,” let me out of this place!”

“There’s nothing  I can do son…nothing I can do.”

He almost sounds pitying. Then the whistling starts again. It’s something from Stangeways, Here We Come.

I can’t stand the cell I’m in. I don’t deserve this treatment. I want my lawyer..oh, hang on. An hour ago I was talking to a client, discussing his options, trying to get him out of here. Now I’m here myself, and this guy can’t even hold a tune.

When I was leaving after visiting a client, the door broke in the secure room you have to pass through to return from the visiting area at HMP Addiewell. That was one hour ago and I’m still here. Perhaps if I’m here long enough they’ll have to give me bail, on the basis that my indictment hasn’t come in yet.

At the other side a small family is trapped in the adjoining room. I’m pretty sure the prisoners have gone to the pub with the rest of the guards and we’re going to be in for the bank holiday weekend. We picked the wrong day to get locked up.

I decide to use this period productively. I could think of what to write for the blog. My colleagues are contributing to the site with a myriad of entries which display their legal knowledge, opinions and experience to a receptive public. I, on the other hand,  have written about  getting lost, knocking over a prominent QC,  and setting off an alarm. This is Karma, this is what this is. This is payback.  What to write about? Perhaps the current state of prison conditions, which are seeming fairly grim to me. Forget slopping out, there’s not even a pot in here.

The family has started banging on the glass. They look angry-not at the guard, but at me. Perhaps they think me responsible for their incarceration?

Maybe I’ll write about the importance of common law and its relevance even in today’s evermore codified legal landscape. It’s been done before but I’ll just change some words about and add in a bit about Justinian. Hopefully no one will notice.

The family has now started to break down the door separating our two cells. I’m not sure how much longer I’ve got. Think!

Oh, my door’s just opened.

Och I’ll just write about this.

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New Drivers and Penalty Points

23
April 2014




A warning to “new” drivers: your licence will be revoked if you get 6 or more points within 2 years of passing your test. The Driver and Vehicle Licensing Agency (DVLA), acting on behalf of the Secretary of State, will automatically revoke your driving licence when notification is received regarding the relevant conviction or fixed penalty. The New Drivers Act (1995) effectively created this probationary period, the intention being to reduce casualties among newly qualified drivers and those incurring endorsable traffic offences within a period following the first driving test. It was introduced in 1995 and took effect from 1 June 1997. However, it is not as straightforward as it seems.

For example, any unexpired penalty points on your provisional licence i.e. points incurred on a provisional licence or while without a licence will be carried over to your full licence when you pass your test.

The good news is that even if you have live points when your test is passed then you will not automatically have your new full licence revoked: revocation will only happen if any further penalty points are received within the two year probationary period which take the total to 6 or more. So there is nothing to prevent you sitting your test even if you have 6 or more live penalty points.. The bad news is that in such a situation a single endorsement in the probationary period will lead to revocation, as long as the total number of points  after the endorsement reaches 6 or over.

Points incurred after the probationary period has expired will also count if the offence was committed during the probationary period: it is the date of the offence that is relevant, not the date of conviction.

There is no obligation on the part of the authorities to warn you of the procedure or the fact that you will have your licence revoked. The process is automatic, so neither the Police, the DVLA or the Courts have any discretion. If you accept a Fixed Penalty Notice or receive a conviction at court which results in 6 points being reached within your first 2 years of driving, your licence will be revoked without any prior warning or further Court appearance. It is assumed that you will be familiar with the Road Traffic (New Drivers) Act 1995 – ignorance of the law is no defence.

If your licence is revoked then you will have to apply and pay for a new provisional licence. You will also need to pass both the theory and practical parts of the driving test again in order to get a full licence.  Please note there would not be another probationary period after passing the second test-the Act only applies to the first full test that you pass. Also, there isn’t an additional probationary period if you pass an additional test for a different category of vehicle, eg if you pass the test for heavy goods vehicles. So by adding a new category of driving to your licence you do not start again from scratch as far as the New Drivers Act is concerned.

If your licence is revoked under the New Drivers Act you cannot appeal the revocation, although you can potentially appeal against the conviction that led to the points in the first place. If you do decide to appeal then you may be able to keep your licence until the appeal concludes. Please note that once accepted you cannot appeal against a fixed penalty.

If  you are disqualified outright during the probationary period then you would simply serve the disqualification. For a ban of 56 days or more you would have to formally apply for your licence to be returned, but there would be no need to resit your driving test. Some people might find it advantageous to suffer a short ban at court rather than resitting their test, but it depends on personal preference and the circumstances of each case.

These revocation rules apply to all new drivers who passed their first driving test in not only Great Britain, but also Northern Ireland, the Isle of Man, Channel Islands, Gibraltar and the European Community (EC) and European Economic Area (EEA) (Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovenia, Slovakia, Spain and Sweden). If you have moved here from another country where you held a non UK licence but need to take the driving test here to gain a UK licence, then the same rules apply for the two years after getting your UK licence.

It is easy for new or young drivers to get caught out by these regulations. The safest thing is to seek legal advice at the point that you have been charged with a Road traffic Offence, or offered a fixed penalty. Central Court Lawyers can provide expert advice advice on Road Traffic Law, and the effect of these rules. If you think that they may apply, or if we can help, then contact us on 0845 605 9990.

Please note that the above reflects the law as at 23 April 2014. For the most up-to-date advice tailored to your own specific circumstances, contact one of our solicitors on our 24 Hour Hotline - 0845 605 9990 or email us at enquiries@centralcourtlawyers.co.uk.

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Fanfare For The Common Law

15
April 2014
Category SCOTS LAW




Some years ago I was asked to look at a document setting out a draft criminal code for Scotland. The authors were recommending statutory codification of all common law offences under Scots Law. The rationale of this I no longer recall but the timing of the draft broadly coincided with the coming into force of the Human Rights Act 1998.

The draft code set out to define the conduct required to commit each crime and did not depart from the common law definitions to any significant degree.

Over the years I wondered if the Scottish Parliament would pick up on the code. After all, that particular assembly is never done passing Acts which affect criminal law; evidence and procedure. As an aside am I alone in wishing they would leave us alone for a few years? To date, however, we have only seen the passing of the sexual offence legislation which abolished certain common law offences whilst creating what might be described as modern definitions of them. Thus, for example, rape in its new statutory form is no longer gender based.

Beyond that the common law largely remains though the effects of ECHR have resulted in the effective removal of shameless indecency and some tweaking to breach of the peace.

We have also seen a plethora of legislation creating offences which outlaw specific types of prejudiced behaviour. An example is section 50A of the Criminal Law (Consolidation) (Scotland) Act 1995. Some critics prefer to label such laws as political correctness and argue that the common law, particularly breach of the peace, covered the offending behaviour. The ECHR based redefinition of breach of the peace removes that guarantee if the behaviour is not public. Moreover, I am sympathetic to the views of those who argue that specific statutory offences resulting in convictions do assist in assessing the extent of a problem within our society. 

However, a word of warning is always necessary in regard to a statutory offence. It is that all the key elements will require to be corroborated and an inability or failure to do so may lead to the case failing even if there is ample evidence of criminal conduct of some description.  Failure can be avoided thanks to the common law and the workings of Paragraph 14; Schedule 3 of the Criminal Procedure (Scotland) Act 1995. Broadly put this permits conviction for a common law offence under a prosecution for a statutory offence if

                a  the alleged act is also criminal at common law ; or

                b  the facts proved do not amount to a contravention of the enactment but do amount 
                    to an offence at common law.

Anecdote time.  I recently defended a client on a section 50A(1)(b) charge of racially abusing a shopkeeper .The evidence on paper was sufficient with the victim being corroborated by a customer who appeared independent. However, there was late disclosure of a revised statement from the customer in which he indicated that although my client’s conduct had been abusive he (the customer) had heard no racial invective. Standing this the case could not prove as corroboration that at least some of the conduct was racial in nature was essential. Notwithstanding that, my client accepted he had been out of order and wanted to plead guilty.

What was provable was breach of the peace with a racial aggravation (for which no corroboration is required) and the case resolved along those lines.  The common law had ridden to the rescue.

This experience set me thinking about the common law and its flexibility; its tradition and its continuing usefulness. I am old enough to recall the glue sniffing kits case in 1983 (Khaliq) and the use made of the old common law crime of real injury to establish that an indictment was relevant. Of course a statute could always be passed to outlaw the conduct of Mr Khaliq but the point is that evidential deficiencies in any of the statutory offence’s essential elements can lead to acquittal. The flexibility of the common law often prevents such an outcome.

So let’s hear it for the common law and hope our legislators leave it alone.

PS-I am acutely aware that the abolition of corroboration would ease the problem in the case I handled but, for all of us, that is an argument for another day.

Mike Bell conducts work for Central Court Lawyers on a freelance basis since his retiral from a senior position within COPFS. He holds extended rights of audience in the High Court of Justiciary as a Solicitor-Advocate, and regularly appears in the High Court and Appeal Court. Central Court Lawyers value his experience and intellect, and recommend him to firms who may need an experienced locum. He can be contacted on 07792623297.

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There's Nothing Fixed About A Fixed Penalty

31
March 2014
Category SCOTS LAW




There are a variety of methods of dealing with criminal offences which do not involve a criminal prosecution. These methods come under the general category of Direct Measures and this article is intended to focus on one such type of measure-the Fixed Penalty Notice (FPN) used by Police Scotland, and a "Fiscal Fine" issued by  the Crown and Procurator Fiscal Service (COPFS).

What is a Fixed Penalty Notice? This type of case disposal was made available to the police by the Anti Social Behaviour (Scotland ) Act 2004. It gives police the power to issue on-the-spot fines to people who are behaving in an antisocial way and causing annoyance to others. The FPN is a £50 fine and can only be issued to people aged 16 and over.

The offences likely to attract a FPN are :

Breach of the Peace
Vandalism
Destroying or damaging someone's property on purpose (Malicious Mischief)
Being drunk and incapable in a public place
Being drunk in a public place in charge of a child.
Drinking alcohol where it breaks a bye-law.
Urinating of defecating in a place that causes, or is likely to, cause annoyance to others.
Persisting in playing music or singing when you're annoying people and have been asked to stop.
Refusing to leave licensed premises when asked.
Riotous behaviour while drunk in licensed premises such as a pub or club.

If you are issued with a FPN, you will have 28 days to pay the fine or ask for a court hearing. If you think the FPN has been issued unfairly then you should contact our helpline 0845 605 9990 for advice. If you wish to challenge the penalty notice then it is essential that the issuing authority be contacted within the 28 day time limit to intimate to them that you do not accept the offer. Upon your intimation of your refusal of the offer, a report will be sent to the Procurator Fiscal for their consideration. This may lead to you being issued with a citation to attend court in relation to the offence which will give you an opportunity to challenge the allegation.

If you choose to do nothing during the 28 day period then the FPN will be increased to £75 and will be registered with Scottish Court Services for collection. In the event of non payment, fines enforcement measures such as a citation to appear at court, deduction from your state benefits or an arrestment from your wages may follow.

A FPN is not the same as a criminal conviction. However, the police will keep information about the FPN for two years. A FPN will also be detailed in an Enhanced Disclosure Certificate as "a non conviction disposal" and could have implications for those in employment and subject to enhanced disclosure procedure.
 
It is always better to seek legal advice if you have been offered a FPN since doing nothing can have serious consequences. Contact us on our helpline number 0845 605 9990 and we can offer advice tailored to your own circumstances

The COPFS can use "Fiscal Fines" or "the fixed Penalty conditional offer" for less serious offences. The COPFS do not publish their guidelines concerning what qualifies as a "less serious offence". The level of fines are set by the Scottish Government and are currently £50, £75, £100, £150, £200, £250 and £300. This fine will be registered against the accused (resulting in no court proceedings) unless he or she gives notice that he or she refuses the offer. If challenged the COPFS are likely to prosecute for the offence.

If a prosecution follows a rejection of a fixed penalty offer, the accused's failure to take up the offer and the amount of that offer may be disclosed to the Court.

A fixed penalty from the COPFS is not recorded as a criminal conviction. However they are recorded and can be disclosed to the court for a period of two years. Where a fixed penalty offer has not been rejected the COPFS, if asked, may disclose this to any person whom it considers to have a legitimate interest in knowing the outcome of the case, for example the victim or the media.

Both the police and the COPFS also offer as an alternative to prosecution, fixed penalties for less serious road traffic offences. In contrast to non road traffic fixed penalty offers, road traffic fixed penalties are only registered when they are actively accepted by the accused. If the offer is accepted and payment made, no prosecution is brought. If the offence is an endorsable offence then penalty points are also endorsed on the accused driving licence.

The fine must be paid in full rather than by instalments and payment must be made within 28 days. This can place an impossible burden on people dependent on state benefits or low incomes and Central Court Lawyers have successfully argued at a subsequent court hearing following non-payment that the level of financial penalty imposed by the court should be restricted to that of the fixed penalty previously offered in such circumstances and payment by fixed by agreed instalments.

Please note that in relation to a road traffic fixed penalty offence, the COPFS has a period of up to 6 months from the date of the alleged offence to prosecute the matter failing which the case will be time barred. Occasionally fixed penalties have been challenged by us on behalf of clients on the basis of timebar where COPFS have failed to cite the case for court within the 6 month statutory time limit. If succesful, this argument brings the matter to an abrupt and successful end.

It is often said that the law is rarely pure and never simple and even in this area of less serious offending, it is always prudent to take advice from one of our lawyers, who will be more than happy to talk through the issues with you.

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A NITA way of doing things

24
March 2014
Category SCOTS LAW
 



The National Institute for Trial Advocacy, known as NITA, is a United States based not-for-profit organisation initially formed in an effort to provide lawyers with better trial skills training. The core of the concept for NITA is learning by doing. NITA’s team of practising lawyers, professors and judges all have the same mission-

To promote justice through effective and ethical advocacy. To train and mentor lawyers to be competent and ethical advocates in pursuit of justice and to develop and teach trial advocacy skills to support and promote the effective and fair administration of justice

In September 2013, NITA came to Edinburgh. Central Court Lawyers are committed to the ongoing development of our lawyers, and this time it was my turn to participate in what was a 3-day NITA  teaching programme. We had the pleasure of being instructed, and critiqued by NITA trainers Christina Habas, Jim McCrystal, Bob McGahey and Sandra Johnson.

The programme was intense. The sessions split initially into teaching sessions. One of the trainers would provide us with the basic rules and concepts. The trainers would then demonstrate the theory. We would then have a whole class exercise designed around the philosophy of learning by doing. Finally, we would “perform” based on what we had learned, and were critiqued in smaller groups both by trainers and peers within the group.  We were also horrified to find out we would be filmed twice and we had to watch our own performance with two of the trainers again being critiqued and critically analysing our own performance.

The two main areas of teaching was direct evidence (examination in chief) and cross examination with a focus on expert witnesses.

We learned that the ultimate path to successful witness examination is “Good questions get good answers”.

Direct evidence questions are the who, what, why, where, when, describe, explain, tell me about questions.

We were told to be organised in our approach, to use open questions, headnotes, focus on single facts, don’t ask questions which contain conclusions, listen to the witnesses answers and follow up. Most importantly “get rid of the clutter”. We were told to get rid of the “so”, the “right”, the “you told us” the fillers at the start of questions. Most importantly be prepared!

In cross examination we were told you don’t have to be “cross” in cross. To stick to the “lesson of Zorro”-  to be precise and pointed. To be a duelling sword and not an axe.

We were taught to focus on controlling the witness. You should  ask closed and leading questions, not simply restate direct evidence Ask helpful questions first and-the “number one rule” NEVER ASK A QUESTION YOU DON’T KNOW THE ANSWER TO.

I found the trainers on the course to be extremely approachable and when I asked for advice on certain aspects of my performance they were very patient and helpful. They would assist in the small group sessions by focussing on the particular aspects I asked for help and advice on. For example, I said I was aware that I can be softly spoken (unless riled!) and sometimes I  felt that I didn’t speak as loudly as my peers in court. To counter this, when I was within my smaller group setting, the trainer would stand at the opposite side of the room and tell me to shout out my questions. The trainers also acted as witnesses during the smaller group sessions and would be deliberately difficult shouting out “get rid of the clutter” or “headnote” when moving from section to section during a direct evidence tutorial. The NITA course has made me more aware of not only the questions I ask but the form the questions take during actual trials in court. I also cringe at myself if I now ever say, “I put it to you…” and can hear the trainers shout “get rid of the clutter”.

The part of the course which we were most dreading was being filmed and having to watch the film back. I had to critically analyse my performance along with input from the trainers. The actual filming and viewing was actually very helpful and has made me very aware of my body language and conscious of maintaining eye contact with witnesses. I was advised I had a good stance and didn’t fidget which NITA advised is very distracting to witnesses. When being filmed my voice was loud enough and clear enough. I was aware that I look down at my papers quite a lot and was losing eye contact with the witness so during the next exercise I had my papers confiscated. I am now more aware of maintaining eye contact with witnesses during questioning and look at my papers at the appropriate time just before asking the next question.

In summary, the NITA course was a brilliant and I would recommend it to anyone no matter how experienced they are. It has recharged my enthusiasm for the job of a court lawyer, and I am certain that clients will see the benefit of the skills learned.

I will close with one of the tutors, Judge McGahey, who perfectly summed it all up-

Good lawyering ain’t hard-learn your lines...plant your feet...look the other actor in the eye...say the words...mean them

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The World Is Changing (again.....)

17
March 2014
Category SCOTS LAW




As one of the older solicitors in Central Court Lawyers I can remember the days when you used to be able to speak to a Procurator Fiscal on the phone. All solicitors who currently practice in Scotland will realise the futility of that expectation now. You used to be able to meet with Fiscals to discuss cases – nowadays that state of affairs is a distant memory. You used to be able to negotiate solemn cases with your local PF –now in our brave new Federated world , that’s a quaint notion. Discuss a case before its marked? – phone Stirling. Oh sorry – there’s nobody there to take the call.
 
At present there is one full time Fiscal at Livingston. I remember not long ago there were 9 full time Fiscals. There is  a knock on effect to all of this- yes you guessed it – cases don’t get disposed of quickly. When you do manage to get a Fiscal to discuss a case they tend to be more risk averse than a tee-total actuary. "We can prove that charge –we’ll only accept guilty as libelled “-sound familiar anyone?
 
The reality is that the writing was on the wall as long ago as 2008. Local Fiscals were warned by experienced agents like ourselves that they would be marking themselves and their colleagues out of jobs with the new guidelines about diversion. For whatever reason a lot of them took to these new guidelines with gusto. What happened two years down the line? Contract’s weren’t renewed and able young Fiscals found themselves on short term contracts, while the most experienced Fiscal were jettisoned via early retirement.
 
I’m not really certain if this was a long term plan by COPFS , or whether they have had to cut their cloth like the rest of us. No part of the Justice system appears immune from cuts nowadays – apart obviously from domestic incidents. Swear at your partner of a Saturday evening and then accept it was an argument to the police when questioned and that will be you – custody until Monday and bail conditions not to go home for at least three months. I’m the first to accept that something should be done with regards to domestic abuse – but the Crown appear to have lost all sense of perspective when dealing with domestic cases. This isn’t going to improve either if corroboration – as now seems almost certain – is removed. I fail to see where the funding will come from if there is a large increase in prosecutions , unless the 0844 number which charges you for calling the Crown is even more lucrative than we think(Incidentally, am I alone in thinking that the fact that you have to dial a premium rate number to speak to a body who prosecute in the public interest is beyond parody?)
 
What flows from this is potentially very far reaching – will the days of one on one consultations with clients be a thing of the past? With no corroboration requirements will solicitors , doctors , nurses , social workers , COPFS employees and indeed police officers leave themselves open to potential prosecution in one on one situations? Will the English test of a reasonable prospect of conviction be applied here? As always , the devil will be in the detail.
 
It’s probably fair to say that those of us involved in the  Criminal Justice system since 1998 have lived in interesting times. It’s probably also fair to say that it isn’t going to get boring anytime soon. Right – off to get a couple of cases sorted – if only……

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LEGAL AID - IT'S ALL RELATIVE

07
March 2014
Category LEGAL AID





The provision of legal aid in Scotland is at the heart of the Scottish Government's Justice Strategy and the legal aid strategy is set out in the paper  "A Sustainable Future for Legal Aid" published in October, 2011. This set out that legal aid provision is to be focused on those who need it most with the right help available at the right time to ensure a wider access to justice.
 
http://www.scotland.gov.uk/Publications/2011/10/04161029/
 
Legal aid is one of the few government budgets which remains non-cash limited with scope and eligibility remaining wider than in many other countries. Nevertheless such funding, like every other area of government expenditure in Scotland, is not immune from the UK economic recession. The challenge of retaining a full scope system whilst delivering savings has proved fraught with difficulty. Various legal aid saving packages have been the subject of, at times, difficult consultations with the legal profession and serve only to highlight the scale of the challenge. There remains a substantial gap between the Scottish Government’s future provision for legal aid and the Scottish Legal Aid Board’s estimates of spend over the next few years.
 
However despite the financial challenges, reforms through the Making Justice Work programme, the developing Justice Digital Strategy and legislative reforms such as the establishment of the Scottish Civil Justice Council could help to ensure that our legal aid provision delivers best value and continues to facilitate access to justice in Scotland. However continuing tough decisions will require to be made in a market where quality of service and business efficiency of firms will be essential in achieving the sustainability of legal aid provision.
 
Whilst this may seem a somewhat bleak prospect, how does our approach in Scotland to the provision and reform of legal aid compare to our neighbouring jurisdictions in England & Wales, Northern Ireland and the Republic of Ireland? Set out below is a brief snapshot of some of the issues facing these jurisdictions.
 
Since April 2013, legal aid in England and Wales has been operated by the Legal Aid Agency as an executive agency of the Ministry of Justice. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 made significant changes to the eligibility criteria and scope of legal aid with the budget earmarked to reduce from £2.1bn to £1.6bn by 2017-18.The scope for civil legal aid has been cut drastically taking potentially over 600,000 cases out of the existing scope with family and welfare benefit cases the main casualties.
 
From April to June 2013 the UK Government ran the "Transforming Legal Aid" consultation which included along with significant fees cut proposals, the removal of a client's ability to choose their own solicitor and to introduce price competitive tendering for criminal legal aid services. There was a high profile public campaign by lawyers and barristers to oppose the reforms set out in the consultation document particularly the proposals to introduce price competitive tendering for criminal legal aid cases. The initial consultation response was published in September 2013 and after an agreement with the Law Society, PCT was dropped for the time being, other proposals were to be subject to further consultation but other significant reforms to reduce expenditure were introduced by the UK Government which remains committed to a significant cut in the legal aid spend.
 
At the end of February the Ministry of Justice confirmed the outcome of the further consultation. Solicitors fees will be subject to staged cuts in two phases: the first, of 8.75% will be implemented after the 20th March and the second cut of the same amount will be introduced in the spring of 2015.
 
The UK government will introduce a two tier contracting model, tendering for an unlimited number of contracts for own client work, available to all firms that meet quality thresholds. Contracts for duty work will be limited and allocated on a "tight contracting mechanism" based on quality and" capability to operate in this more challenging market." It is anticipate that the number of firms carrying out duty work will reduce from 1600 to 525.However firms will be allowed to establish informal consortia of up to four firms in number to make bids for such contracts.
 
In respect of barristers fees these will be reduced on average by 6%, although the Ministry of Justice states that this will be around 2% for junior barristers. These changes follow cuts to the fees paid to barristers and solicitors in the most serious cases by 30% which were introduced in December 2013.
 
Solicitors and barristers have organised a "mass walkout" from courts on today (7th March) in protest at the Ministry of Justice plans.
 
In Northern Ireland a new Legal Aid Services Agency will be established from July 2014 as an executive agency of the Department of Justice. Like Scotland the budget is demand led with expenditure in 2012-13 reaching £47.7m for criminal legal aid and £47.1m for civil legal aid. This relatively expensive cost is far in excess of the £75m budget target and the Northern Ireland Executive has announced proposals to reduce expenditure including amendments to the remuneration rules to reduce the fee for a case in the Crown Court by aligning it with the equivalent fee paid in England and Wales. The Northern Ireland Executive, Justice Minister, David Ford stated that the present legal aid case fee for a Crown Court is double that available in England and Wales and that the legal aid spend per head of population was £56 as opposed to £36 in England and Wales. He described the status quo as unsustainable and significant cuts are expected.
 
In the Republic of Ireland the Legal Aid Board, an independent body set up by statute, is responsible for civil legal aid and the management and administration of various criminal legal aid schemes including the Garda Station Legal Advice Scheme. Legal aid spending in the Republic was €32.922m resulting in a small reduction from 2011.Spending per head of population is significantly lower than in the United Kingdom with the UK Ministry of Justice setting out spending comparison in a paper published in September 2011.
 
https://www.justice.gov.uk/downloads/statistics/mojstats/international-legal-aid-comparisons.pdf
 
Even with this relatively lower spend base, rates payable under various criminal legal aid schemes were reduced by 8% in each of the years 2009 and 2010.Further regulations were introduced in 2011 to reduce a range of fees rates covering fees for travel, court work and police station attendances. In 2012 in broad terms, fees arrangement for barristers resulted in a 20% reduction with the reduction substantially more in some types of cases. Minimum contribution payments by applicants in advice and assistance cases were increased from €10 to €30 and in legal aid cases from €50 to €130.
 
Clearly the above references to our neighbouring jurisdictions can only be generally illustrative of the direction of travel and problems faced by those countries in maintaining a legal aid provision in times of economic austerity. However what is clear is that the debate on the sustainability of legal aid in Scotland will require to recognise that the financial funding challenge that we face is hardly unique or indeed unusual and some credit should be given to the Scottish Government for it's commitment to retaining a full scope provision which is far more extensive than in England, Wales and the Republic of Ireland.
 
Difficult decisions will require to be made for a market seeking to maintain the extensive provision of legal aid services which actually increases budgetary pressures whilst trying to satisfy the legal aid solicitor and advocate providers who are competing in an already overcrowded market with fees in their area of practice under constant pressure. It is clear that the current level of legal aid spend significantly exceeds the figure set by the Scottish Government and it seems inevitable that further changes will be proposed to reduce this spend on legal aid. In economic terms it is a combination of reduced financial resources for a declining market populated with an overabundance of provider firms.
 
Despite these difficulties and the need to adapt to them, the role of the legal profession remains fundamental to the Scottish Government's justice strategy and this role works best when in partnership with the Scottish Legal Aid Board who have an equal and full time commitment to ensuring a sustainable future for legal aid and it's pivotal role in delivering access to justice.

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THE SECOND TRAINEE PART 2-MY BACK PAGES

26
February 2014




 
If you have been keeping up to date with Central Court Lawyer’s weekly blogs you will have read entries from some of my (far more esteemed) colleagues. However, for this week’s blog, I will reflect on my university experiences of the Diploma in Legal Practice and how those experiences has helped me since I started my traineeship. I hope that these views on my early experiences are of some use to my fellow trainee solicitors and law students.This is intended as some general observations rather than an academic critique. I shall therefore avoid any objective  assessments regarding particular subject courses and instead present a general flavour of where the diploma delivered unexpected benefits
 
There are as many different opinions on the Diploma in Legal Practice as there are legal minds in the profession and from my experience, I can understand why. There are those who think that the diploma is far from perfect. Whilst I agree it is not without its flaws, my submission for our weekly blog is going to focus on some positive effects that I experienced and how these have helped me in my traineeship so far.
 
Although clichéd, I found the teamwork element of the diploma to be of great use on a number of levels. During my time at Strathclyde, I was placed in a “firm” with 3 other diploma students and it was here that I gained my first taste of what working in a legal environment may entail. Having worked with Central Court Lawyers for almost three months now, what has surprised me the most is the teamwork which goes on throughout the day. The firm has invested significantly in technology and I along with my fellow trainee, were issued with a smart phone, iPad and laptop.
 
These “tools” are meant to be used and communication from office to office, court to office and any other permutation is constant with our virtual office software ensuring everyone can, at any time,  be (quite literally) on the same page. It also gives me instant access to help and advice which I am becoming less and less embarrassed to access. Therefore the importance of team work highlighted during the diploma is perhaps an unexpected aspect of the diploma which has a direct and immediate correlation to the reality of life as a trainee.
 
Another important element of the Diploma in Legal Practice for me was the networking opportunities. I have a particular disdain for phrases like “networking”, “blue sky thinking” and their ilk but the thinking behind these jaundiced phrases is something which will help the aspiring trainee in no small measure. As soon as I started with CCL, I was taken to the High Court and various Sheriff Courts to be introduced to a whole range of lawyers, some of whom I’d previously enjoyed reading about. There is very much a feeling that you have now joined the “club”. Further in my first month in the job, I met my former criminal law tutor (a Sheriff in one of my firm’s local courts) and 2 former diploma students, both of whom I had studied with on various TCPD courses prior to starting my traineeship. So that familiarity was comforting along with the exposure to the personnel who inhabit the legal profession especially coming from a background containing little or no legal professionals. On a personal and professional note, being able to talk with peers who are in the same boat is as you would expect  very helpful to say the least!
 
Finally, The best advice that I would give to students doing the diploma is to enjoy it. I know the cost, work load and prospects at the end are hardly motivational. However it can be useful and relevant. Silly though it may sound, being “on your feet” in a classroom of your peers gives the first taste of what (a dispute resolution) traineeship could be like and if you enjoy this, you’ll enjoy the training to be a court solicitor.
 
I hope my words have helped and please make sure to check back on our website, Facebook page and twitter feed to keep up to date on all the latest developments from Central Court Lawyers.

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Traineeship Part 6 "Help!"

21
February 2014


    

A frosty January morning.

I traipse through the shadowy streets of a dimly lit Lanarkshire town, home to Central Court Lawyers brand new purpose built office, with the wind almost blowing the pile of files that I’m balancing on my head under a car. With keys hygienically in mouth, the various hi-tech  locks are turned and with my knee, I turn the door handle.

I burst in like a guest arriving at the wrong house for a party and soak in the total lack of atmosphere. A brightly lit new office, the paint still fresh as if a brush had just dabbed the walls. The new hot & cold water dispenser gurgling comfortingly  in the distance. I respectfully dump the files that I’d been carrying on the floor and head to the new alarm to input the complicated code designed  to stop a pre-emptive nuclear strike & disarm it (stopping a potential nuclear holocaust)

I nonchalantly enter the digits. Hang on, this worked yesterday. Why is it still bleeping? Surely  if I bash the numbers harder… That didn’t work.

Oh dear.

BEEP BEEP BEEP BEEP BEEP BEEP BEEP

It sounds like the war has broken out. Or it sounds like someone’s broken in. I’m in the middle of it. They’ll think it’s me.

(I take cover behind the reception desk)

From my fort they’ll never catch me. I’m impenetrable in here. Time passes. Minutes feel like weeks. Weeks feel like months. And still, the sound reverberates. It screams. Will it end like this? Why? What did I do?

The door goes. I hide. I hear footsteps. I hear the sound of buttons being pushed.

 Silence.

It’s time to go over the top. Go out fighting…

“Oh, Hi David. Didn’t see you there”

“Yeah, em, I was just looking for a file behind this desk here, on the floor. Strange. Couldn’t find it.”

“Oh well.  Another day in the new office.  I take it from the noise no one told you the code’s been  changed.”

There are a great many features to mention about the office. Chief among them is the  wall-mounted  TV unit which I’m reliably informed will be utilised for such sporting spectacles as the Brazil Worl….eh…I mean for viewing CCTV footage and video conference calls.

I think Livingston is jealous for now. I’m fortunate enough to have the best of both worlds.

I only hope the residents of Caledonian Road can forgive me for the noise.

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ARE YOU READY TO FULLY COMMIT?

17
February 2014
Category SCOTS LAW
 




The Act of 1701 (c. 6) (an "Act for preventing wrongous imprisonments and against undue delayes in tryals"), sometimes referred to as the Habeas Corpus Act of Scotland, set out that no one could be imprisoned, pending trial, without a written warrant. This eventually resulted in the provisions of the Criminal Procedure (Scotland) Act 1995 section 40:

40   Committal until liberated in due course of law.
 
  1. Every petition shall be signed and no accused shall be committed until liberated in due course of law for any crime or offence without a warrant in writing expressing the particular charge in respect of which he is committed.
  2. Any such warrant for imprisonment which either proceeds on an unsigned petition or does not express the particular charge shall be null and void.
  3. The accused shall immediately be given a true copy of the warrant for imprisonment signed by the constable or person executing the warrant before imprisonment or by the prison officer receiving the warrant.

So what is required for such a warrant? Many believe that the Crown require to prove a corroborated case at the point of full committal, but is that correct?

Renton & Brown: Criminal Procedure (6th ed) tells us at para 12-37:
"The Sheriff nowadays commits accused persons for trial on presentation of a petition containing a prima facie relevant charge signed by the Procurator Fiscal.”
 
In Burn, Petitioner [2000 JC 404] the opinion of the court was that the Sheriff could always enquire into the content of a petition in determining whether to grant a warrant.

In Normand v McQuillan [1987 SCCR 440 (Sh Ct)] there was an objection to the competency of the petition for warrant on the grounds of oppression, and the warrant was dismissed. The Sheriff’s view was that if the Crown were entitled to move for an order then the accused, who would be affected by said order, was entitled to oppose it.

In Hynd v Ritchie [2002 SLT 984] the Crown conceded that the Procurator Fiscal should not move for a warrant unless the custody statement disclosed 
"a 'proper basis' for incarcerating the accused pending his trial but that that involved no more than an indication of sources of evidence from which a sufficiency of evidence might in the end be obtained".
 
In Lauchlan v HM Advocate [2010 SCCR 347] it was said that there wasn’t a requirement for a strict legal sufficiency of evidence (i.e. two independent corroborated sources), but that there should be a prima facie case against the accused.
 
Article 5 of the European Convention requires the need for "reasonable suspicion" (merely the existence of information which would satisfy the informed objective observer that the person concerned may have committed the offence).
 
In Jie Lin v HM Advocate [[2012] HCJAC 151] Lord Carloway states at para 22:
“It is important to recognise, however, that it is not the proper function of the court to conduct an in-depth analysis of the sufficiency of the evidence at full committal. The court cannot begin to consider the veracity of statements at such an early stage. It will be enough if the custody statement does contain material which provides a "proper basis" for incarceration or, put another way, a prima facie case. If it is manifest that there is no such case, or that the statement does not contain grounds for reasonable suspicion under Article 5, then the suspect will be entitled to plead oppression on the part of the Crown and to seek dismissal of the petition. On the other hand, if the suspect is merely claiming that the Crown case is an apparently weak one, this will not provide a good ground for opposing the committal”.
 
In summary, the Crown do not need to prove a corroborated case, only a prima facie case. Opposition to a Crown motion to fully commit can only be made where there is an absence of evidence, as opposed to an insufficiency of evidence, and where the Crown act oppressively in moving for the warrant. Likewise, Bills of Suspension will only be competent if they seek to suspend warrants granted oppressively against an absence of evidence. Any concerns regarding sufficiency of evidence at the stage of full committal should therefore be restricted to the application for bail.

We hope that you find this to be of assistance to you and please remember that our team of solicitors at Central Court Lawyers have specialist experience in all types of criminal cases. If you require any further information in relation to the above, or if would like any advice or assistance in relation to any criminal case, please contact us on our 24 Hour Hotline - 0845 605 9990 or email us at enquiries@centralcourtlawyers.co.uk.

Please note that the above reflects the law as at 17 February 2014. For the most up-to-date advice tailored to your own specific circumstances, contact one of our solicitors on our 24 Hour Hotline - 0845 605 9990 or email us at enquiries@centralcourtlawyers.co.uk.

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ROAD TRAFFIC LAW - A QUICK GUIDE FOR MOTORISTS

07
February 2014




Being stopped by the police while driving: your rights

If you are a driver, you may have been stopped by the Police. If not, the chances are that you will be at some stage in your driving career. This can be a nerve wracking experience, even if you have not broken the law, and it is important that you are aware of your rights.


Central Court Lawyers set out some helpful information for you to keep in mind if you are stopped by the police.

Police Powers

If you are requested by the Police to stop, you MUST pull over.It is an offence if you don’t.

The Police have a right to request to see your driving licence, insurance certificate and MOT certificate. If you do not have them in your possession, the police will issue a HORTE form, which requires you to produce them at a nominated police station within a specified time period.

The Police also have a right to request your name and address.  In some circumstances, they are entitled to search both you and your vehicle. Our team of experienced lawyers can advise you further regarding police powers to search you and your vehicle.

Breath Test

The Police also have a right to request you take a breath test in certain circumstances and it is an offence to refuse to provide one without a ‘reasonable excuse’.  If you do refuse, you can be arrested.

A reasonable excuse has to be genuine e.g. a health related condition preventing you from giving a sample.  If you fail the breath test, you’ll be taken to a police station and you’ll require to give two more breath tests. If they’re positive, you may be charged.

On-The-Spot Penalty

If you have committed a minor traffic offence e.g. using a mobile phone whilst driving, not wearing a seatbelt, driving through a red light etc. the police can issue you an on-the-spot fixed penalty notice.

You can choose to challenge the fixed penalty if you do not accept the offence for which it was issued  but you may have to argue your case in court at a later stage. It is always worth contacting Central Court Lawyers if you receive a fixed penalty, as our lawyers will explain your options to you.

For more serious offences, you may be charged or even arrested. 

Vehicle Faults

If your vehicle has something wrong with it e.g. a broken brake light, the police may give you a ‘vehicle defect rectification notice’.  If so, you’ll need to get your vehicle repaired within the specified time period, and provide proof of this. 

Your Rights if Stopped

If you are stopped and questioned, you are expected to be co-operative. You MUST give your name and address to the officer. If you give false information to the police then you are committing an offence.
 
If the police suspect you of committing an offence they may ask you for an explanation of your behaviour.  You have the right to refuse to give an explanation but there could be consequences if you don’t. The police must explain this to you by reading you the police caution.  This is as follows:-

You are not obliged to say anything but anything you do say will be noted down and may be used in evidence.”

If they do want to ask you more questions and they suspect you of having committed a crime they can:-
 
  • ask you to attend voluntarily at the police station to help with enquiries; or
  • detain you for questioning for up to 12 hours; or
  • arrest you for allegedly committing an offence.

If for any reason you wish to request information from the Police Officer who stopped you, you are entitled to know their name, number and the police station that they are based at.  It is most important that in this type of situation you speak with a lawyer to make sure you receive and understand the correct advice.

Our 24/7 helpline 0845 605 9990 is always answered by one of our legal team who will be in a position to help you immediately.


Failure to Provide Driver Details

Under section 172 of the Road Traffic Act 1988, the Police can require the registered keeper of a vehicle to assist in identifying who was driving a vehicle at the time an alleged offence took place.  This is commonly referred to as a ‘Section 172 notice’.

This is common where a vehicle registration has been detected as being involved in a road traffic offence i.e. by a speed camera but the identity of the driver is not known.

It is important to note that failure to comply with such a notice is an offence.  

Employers should note that the legal requirements of section 172 place certain obligations upon them to keep a record of who was driving a company car at any given time and could face prosecution if they fail to do so.
For individuals served with such a notice, it is a defence to a charge under section 172 to show that ‘reasonable diligence’ was exercised in attempting to ascertain who the driver was at the time in question.

We hope that you find the FACT SHEET to be of assistance to you and please remember that our team of solicitors at Central Court Lawyers have specialist experience in all types of road traffic cases. If you require any further information in relation to the above, or if would like any advice or assistance in relation to any road traffic matter, please contact us on our 24 Hour Hotline - 0845 605 9990 or email us at enquiries@centralcourtlawyers.co.uk.

Please note that the above reflects the law as at 7 February 2014. For the most up-to-date advice tailored to your own specific circumstances, contact one of our solicitors on our 24 Hour Hotline - 0845 605 9990 or email us at enquiries@centralcourtlawyers.co.uk.

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THE SECOND TRAINEE PART 1-THE TIMES THEY ARE A-CHANGING

10
January 2014




Just over a month has passed since I started with Central Court Lawyers and it feels like it has gone in the blink of an eye. As well as my arrival, Central Court Lawyers have opened  a brand spanking new, all singing, all dancing, disability-friendly  office in Wishaw, recruited a new qualified solicitor,  and survived the festive period.
 
 It has  been a great start to my new career. It has gone by in a blur,  and yet my first day and subsequent days are still very fresh in the mind so what better place to immortalise them than in my first of many blogs?
 
My first few days in Livingston Sheriff Court was an eye opener. As my trainee elder David (whose blog can be found here) can attest, the speed of mornings  at court is impressive to the uninitiated, whilst simply being Monday to everyone else.
 
Looking back, all those days ago, I thought that having spent much of my free time prior to CCL at court, I would be able to come to grips with the sights, sounds and unique language of the court…au contraire! I found the experience to be exhilarating and something which I am looking forward to becoming more involved in as the years go by but for now I must confess to being amazed at the effortless way my new colleagues were able to glide through the considerable morning business. From the court to the agent’s room, cell visits with clients new and old and back to court, I moved as a shadow would, quiet as a trainee. It was here I tried to learn as much as I could and where I was able to fully understand that watching from the public gallery is an entirely different experience to my first few days.
 
The lasting memory I have is the convivial nature of the agents with each other (as well as any trainee kicking about) and the welcoming court staff who were able to talk me through their role and what was about to happen. This was welcome advice before the occasional petition emptied the gallery to the bemusement of some and enjoyment of others who were able to slip off for a quick coffee.  Now reenergised, when the court reopened, I was now able to focus on the upcoming cases before heading back to the office in a happy and tired state, looking forward to the next bustling day down sheriff court way.
 
A common thread which will run through my upcoming blogs may well be best surmised as ‘surprise’, no more so apparent when I was off to the High Court in Glasgow later in my first week. This was a chance to see the inner workings of the High Court and , having managed to get  past security, I was ready and raring to go. There was different tempo to the frantic nature of the sheriff court-this had a much more solemn feel to it…yes I know.
 
 As I sat in the court watching a High Court case proceed through the tempered proceedings I thought it amazing that in the space of a week the times were a-changin’ again.
 
There’ll be a blog every month as I traverse my traineeship with Central Court Lawyers and tweets in-between.

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Traineeship Part 5 "With A Little Help From My Friends"

08
December 2013




The lights go up, the dust settles and the actors leave the stage. The audience disperse to their homes. All falls quiet at last. Behind the scenes, the partners at Central Court Lawyers take off  their gowns and  turn their minds to  the impending management meeting. But for the rest of us, the show's over folks.  Another day of my training  @centralcourtlaw is under my belt,  and all the phones switch onto our 24 hour hotline.

The calls which come into the office provoke different reactions. I imagine the one that we received recently asking Central Court Lawyers to step into the breach in the middle of a multi-accused murder trial where  the client had parted company with her previous legal team sparked slightly more attention than the now obligatory mid-morning call from someone offering THE BEST PHONE PACKAGE EVER!! (I am personally quite happy with my phone package, and, for the record, my retro-style, if slightly impractical phone is not the firm issue, iPhone. However it does boast a splendid torch and calculator, which were very useful during those splendid evenings misspent doing maths homework during a power cut)

Anyway back to the mid-trial murder case instruction-this was an office game changer! Given Friday and the weekend, the full resources of the firm were brought into play. In scenes reminiscent of "A Few Good Men", four solicitors were dispatched to Edinburgh on Friday, to listen to the court tapes, while two other solicitors worked on the case in the office. There was no beer or pizza, but those in Edinburgh were treated to coffee and the indescribably good Smoking No.9 baguette from Caffe Espresso. Everyone then received their allocation of papers to read over the weekend, with summaries to be sent to our Solicitor-Advocates on the Sunday. It was, frankly,  a stunning performance of against-all-odds preparation, which results in us being able to tell the Court on Monday that we are ready to proceed with the trial.

So good was our firm's preparation that our Senior Counsel, none other than my boss, Ian Bryce, was able to pick up all of the threads of the case as if he'd been there since the start. My first murder trial experience is a truly a revelation despite years of studying law. There is an intoxicating mix of  tragedy, tension, eloquence, solemnity and raw drama as the jury are sent out to consider their verdict after hearing speeches from all concerned. What struck me was that despite the adversarial nature of proceedings, with accused incriminating each other, all the lawyers are friendly and helpful to each other. It is a strange contrast to the violence of the adversarial incident that caused a sad death.

We all kick about the court waiting on the jury's return. I find myself strangely nervous. Heaven knows what it must be like for those with a personal interest in the outcome.

Wait....what's this-my phone ringing must be a verdict !!!!!! I answer immediately-

"Sir can we interest you in a new phone package at unbeatable..........."

And so the waiting continued, folks
 
 
 

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