Central Chambers http://www.centralchambers.co.uk A Chambers In The Heart Of Manchester Thu, 10 Aug 2017 16:08:12 +0000 en-GB hourly 1 https://wordpress.org/?v=4.8.1 http://www.centralchambers.co.uk/wp-content/uploads/2017/05/cropped-central_icon-32x32.png Central Chambers http://www.centralchambers.co.uk 32 32 36568581 Joe Lynch on Matched Funding for Pupillage http://www.centralchambers.co.uk/joe-lynch-matched-pupillage-funding/ http://www.centralchambers.co.uk/joe-lynch-matched-pupillage-funding/#respond Fri, 28 Jul 2017 13:23:14 +0000 http://www.centralchambers.co.uk/?p=2096 Joseph Lynch, Head of Pupillage at Central Chambers spoke to Counsel magazine about Matched Funding: In late 2015, we found ourselves at a crossroads as a chambers; we are a small, mainly publicly-funded set and […]

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Joseph Lynch, Head of Pupillage at Central Chambers spoke to Counsel magazine about Matched Funding:

Joe Lynch talks to Counsel magazine about Matched Funding


In late 2015, we found ourselves at a crossroads as a chambers; we are a small, mainly publicly-funded set and were considering how we could expand. The idea of pupillage was raised. It had been roughly ten years since we had offered pupillage but the tenants were clear that this option should be explored.

The financial aspects of offering pupillage were an obvious concern but the Pupillage Matched Funding Scheme allowed us to take a chance on pupillage and, in October 2016, we took on our first pupil. We are delighted that, with the support of the Inns of Court, we have been able to offer this opportunity in a very restricted market and our chambers can now help maintain the quality of representation that is the hallmark of the independent Bar.

Thanks to the Pupillage Matched Funding Scheme, we can offer a further three pupillages over the next 18 months; opportunities for recent graduates that simply would not have been there without this scheme. At a time when access to the profession is of great concern to chambers, the scheme helps small, specialist sets like ours to offer pupillage in areas being deserted by those solely searching for financial gain rather than a drive to help the disadvantaged.

 

This article will appear on the August edition of Counsel Magazine. Author: Nathalie Lieven QC, Chair, COIC Pupillage Matched Funding Grants Committee.

Central Chambers is currently exploring what pupillages will be offered after those referred to in the article. It is anticipated that Central Chambers will continue to recruit in areas such as immigration, crime, and family.

In addition to pupillage, Central Chambers is particularly keen to hear from established and new practitioners in family law and immigration. If you are looking to join a progressive, friendly, modern set and want the opportunity to build a solid practice in the centre of Manchester, please contact us.

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Bernard Richmond QC appointed to The Grenfell Tower Inquiry http://www.centralchambers.co.uk/bernard-richmond-qc-appointed-grenfell-tower-inquiry/ http://www.centralchambers.co.uk/bernard-richmond-qc-appointed-grenfell-tower-inquiry/#respond Thu, 13 Jul 2017 11:21:33 +0000 http://www.centralchambers.co.uk/?p=2049 Bernard Richmond QC has been appointed to the team of  3 QCs who will be counsel to the Grenfell Tower Inquiry. Bernard is a Criminal Defence Barrister and also undertakes inquests. He has substantial experience of working […]

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Bernard Richmond QC has been appointed to the team of  3 QCs who will be counsel to the Grenfell Tower Inquiry.

Bernard is a Criminal Defence Barrister and also undertakes inquests. He has substantial experience of working with vulnerable people as part of his practice.

He is also a Recorder and an Assistant Coroner

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Credit for Guilty Pleas – Important Changes http://www.centralchambers.co.uk/credit-guilty-pleas-important-changes/ http://www.centralchambers.co.uk/credit-guilty-pleas-important-changes/#respond Sun, 28 May 2017 18:31:52 +0000 http://www.centralchambers.co.uk/?p=2029   Benjamin Knight sets-out the bumps in the road ahead for the guilty plea regime. On 1st June 2017, big changes come to the system of credit for guilty pleas. A failure to advise on […]

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Benjamin Knight sets-out the bumps in the road ahead for the guilty plea regime.

On 1st June 2017, big changes come to the system of credit for guilty pleas. A failure to advise on the new guidelines at the magistrates’ court will have severe consequences for your lay client and maybe for your professional indemnity insurance.

Mr Knight is a barrister at Central Chambers

Benjamin Knight

Perceptions of the “credit” scheme

The system of credit or discount on sentence to reflect a timely guilty plea has been controversial since its inception. The government introduced it to reflect the reduced impact an offender has upon the public purse, witnesses, victims, and legal aid. But many journalists and politicians have attacked it as somehow “letting defendants off lightly”.

It became a mandatory part of the advice given by lawyers to their clients at the earliest stage in proceedings – often to the consternation of those clients; many of those clients wondering why the person “on their side” was starting their relationship with advice on rolling over.

Then it became a part of the series of questions asked in open court at the first hearing. In those same hearings, judges began “actively managing” cases and, in many cases expressing their views on the viability of defences outlined at that stage. This has led to many defendants wondering why the judge is questioning their lawyer as to whether they have done their job properly. It has also led defendants to wonder whether judges are, in fact, independent.

Then came the active case management hearings; those short-notice listings before presiding judges, designed to determine whether the Crown and defence really intend to run the matter to trial.

Defendants are now routinely asked about their intended or maintained plea of Not Guilty around five times before getting anywhere near a jury.

 

Current practice

Until now, the general practice of judges has been to allow one-third credit for guilty pleas at PTPH; one-quarter or thereabouts between PTPH and trial; one-tenth on day of trial. Some judges have given a full third on day of trial, leading to trials cracking. Some judges have reduced credit from a third at the first hearing if, in their view, the evidence against the defendant was “overwhelming”. The Court of Appeal has expressed various views about the way in which credit has (or has not) been applied to individual cases.

In short, there has been considerable inconsistency around the country and even within the same courthouse. The press has routinely chosen to misunderstand/misrepresent the application of the scheme in order to create scandal.

It is certainly right that guidelines needed clarification.

Unfortunately, the new guideline, in force from 1st June 2017, will be seen by some as less a clarification and more like an additional measure to apply pressure on defendants to plead before knowing the case against them.

 

The guideline

The guideline applies to all defendants aged 18 or over. It applies to all cases, regardless of the date of the offence(s) where the first hearing is on or after 1st June 2017.

It applies in the magistrates’ courts and the Crown Court.

The only routes to a full one-third discount on sentence are:

  • Guilty plea in the magistrates’ court; or
  • Guilty plea and committal for sentence; or
  • Indication of a guilty plea to an indictable only offence, followed by guilty plea at first hearing in the Crown Court.
  • A situation where a “section F exception” applies in the opinion of the judge (see below).

 

It follows that one-quarter will be available at the PTPH stage and thereafter, somewhere between that and none (if the plea occurs after even a pre-recorded cross-examination).

Unsuccessful trials of issue will result in some or all credit being lost. R v Underwood looks as though it will be applied in the strongest terms where evidence is called.

There are flow-charts included within the guidelines.

I will break here to suggest that solicitors should provide a copy of the relevant flowchart to their lay client at the earliest stage. The finger of blame regarding lost opportunities for full credit may well start to point at those advising at the magistrates’ court as the new system beds-in.

 

The Exceptions

Section F of the guideline contains a handful of lifelines to those seeking full credit. Those exceptions, as they appear in the guideline, are:

 

“F1. Further information, assistance or advice necessary before indicating plea


Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.

In considering whether this exception applies, sentencers should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.”

Whilst it is not considered proper for judges to resort to the cliché of “he knows if he did it or not”, this exception gets dangerously close. The first paragraph allows for the lawyer to inform the court that the particular circumstances of the case significantly reduce the defendant’s ability to understand the allegation (not the “case against him”, you’ll note).

The second paragraph qualifies the “exception” still further. You can, it seems, have time to advise properly and for the lawyer to have sight of evidence to understand whether there is a factual and/or legal defence but only if the judge accepts that that is what the delay was for. Otherwise, the judge may simply conclude that the delay is simply the defendant wanting to see what the case is against him.

This is not novel but it does place the lawyer in the lower court in a position where he may be criticised (maybe unfairly) in the Crown Court. It may create a position where privilege is put in peril. Maybe it will create a conflict between the lay client and their counsel.

It is anticipated that most judges will deploy some common-sense discretion (as they usually have when approaching credit) but the uniformity of approach may falter most frequently over this issue.

 

“F2. Newton Hearings and special reasons hearings

In circumstances where an offender’s version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction.”

This “exception” really does little more than slightly sharpening the reasoning given in Underwood (cited above).

 

“F3. Offender convicted of a lesser or different offence

If an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal indication of a guilty plea to this lesser or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication of plea (to the lesser or different offence) was made taking into account any other of these exceptions that apply.

In the Crown Court where the offered plea is a permissible alternative on the indictment as charged, the offender will not be treated as having made an unequivocal indication unless the offender has entered that plea.”

The sting is in the tail, here. If the defendant has not entered an indication to a permissible alternative offence, no full credit.

Think about how many times lawyers have to double-check whether an offence is an alternative. That will be a list etched in the mind of the advisor from 1st June. The full third credit is unlikely to be recovered in many cases under this “exception”.

“F4. Minimum sentence under section 51A of the Firearms Act 1968
There can be no reduction for a guilty plea if the effect of doing so would be to reduce the length of sentence below the required minimum term.

 

F5. Appropriate custodial sentences for persons aged 18 or over when convicted under the Prevention of Crime Act 1953 and Criminal Justice Act 1988 and prescribed custodial sentences under the Power of Criminal Courts (Sentencing) Act 2000

In circumstances where:
• an appropriate custodial sentence of at least six months falls to be imposed on a person aged 18 or over who has been convicted under sections 1 or 1A of the Prevention of Crime Act 1953;
or sections 139, 139AA or 139A of the Criminal Justice Act 1988 (certain possession of knives or offensive weapon offences) or
• a prescribed custodial sentence falls to be imposed under section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 (drug trafficking offences) or section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 (burglary offences), the court may impose any sentence in accordance with this guideline which is not less than 80 per cent of the appropriate or prescribed custodial period.”

These last two exceptions speak for themselves.

Protecting the lay-client’s credit

Lawyers are required to advise clients of the law as it relates to them. They must protect their clients’ interests. They must advise fully and properly on the scheme of credit for guilty pleas.

All of that in mind, it seems likely that, where defendants are charged with indictable-only offences, many defendants will indicate pleas of guilty in the lower court. This will create a presumption of one-third credit in the Crown Court. Before the case arrives in the Crown Court (except in one-stop-shop Crown Courts like Liverpool), IDPC can be analysed more thoroughly, conferences can take place, and proper consideration can be given.

If the defendant then arrives in the Crown Court and decides that he wishes to have a trial, he pleads not guilty and is no worse position than if he had indicated a not guilty plea in the lower court. If he decides that he is pleading guilty, he has retained his one-third credit without having to indicate his final position in the lower court.

There ought to be no impact on disclosure because, as the guideline says at the very start:

“Nothing in this guideline affects the duty of the parties to progress cases (including the service of material) and identify any issues in dispute in compliance with the Criminal Procedure Rules and Criminal Practice Directions.

How long will it be before this is somehow negated? Time will tell but it has never been entirely clear why, if a case is being sent to the Crown Court following an indication of a not guilty plea, the issues for trial need to be identified at the magistrates’ court. I have never seen a case where the issue identified then resulted in the police or CPS providing anything further or going to the issue identified prior to the PTPH.

Whilst lawyers advise their clients to plead when they are guilty and to stand trial where they are not, defendants are not as “thick” as some previous Home Secretaries have thought them to be. Properly advised as to the law, they may well spot their opportunity to test the water.

The only obstacle to this approach is that the ordering of PSRs upon indication may result in some confusion. That said, it seems that PSRs upon indication are common in some areas of the jurisdiction and less so in others.

 

Likely consequences of the new guideline

Whilst the advice that will no doubt flow from this guideline will result in a modest increase in guilty pleas at the lower court, it seems unlikely that it will do much to ease the backlog of trials in many areas of the country.

The guideline implicitly views the defendant with a degree of cynicism. That may be well-placed in many cases but the problem with the noble aim of this guideline is that those same cynical defendants will not be swayed by the reduced credit on offer after they end-up in the Crown Court.

If they are choosing to “roll the dice”, derisory credit will not likely change their minds.

At present, many defendants are seemingly swayed to change their pleas to guilty before the trial arrives. Sometimes after PTPH; sometimes on the day of trial, even.  Very often, the credit available is a major consideration for them. It brings with it a pressure to plead, whether that is the intention of the State or not.

Judges having the discretion to apply greater credit than would be generally expected is part of what keeps the system running. This guideline does not change the fact of judicial discretion. Expect judges to be reminded that these guidelines are just that and – all together – “not tramlines”. But the use of discretion where trials are cracked at a late stage may lead to greater scrutiny in future.

Justice

A missed opportunity to be fairer?

When the consultation took place into this guideline, I responded. I took part in one of the recorded interviews. My name is missing from the list of those who responded, I can’t help but notice.

One of my suggestions was that the emphasis should be placed on the disclosure of the IDPC.

For a lawyer to give proper advice, they ought to know what the case is against the defendant. It is still tediously predictable that CCTV, audio recordings, phone evidence (even in a basic form) and SFRs are missing from IDPC. This was never supposed to be the case. As pressure increases on the defence, the reciprocal expectations on the police/CPS have slipped in some areas.

A fairer approach might have been to allow the defence to formally raise the issue of inadequate disclosure before the question of plea is asked. Maybe an assumption that the absence of video recorded evidence means that the credit clock has not started to run?

Sadly, despite being told that these suggestions were a good and proportionate way to prevent the issues with section F, there’s not a trace of these in the new guideline. I cannot imagine that I was the only person to make these suggestions. Maybe defence lawyers have not raised their voices loudly enough.

There has been a missed opportunity to respect defence practitioners enough and to listen to them regarding the perception of justice being seen to be done. It is sad that insufficient defence lawyers respond to consultations but, since the protests over legal aid, many have become far more vocal. It is certainly the case that many defence lawyers despise the unfairness in disclosure. Indeed, talking to lawyers in other jurisdictions, England and Wales appears to be becoming a tail-light in disclosure regimes.

The CPS, police, and courts are crippled by under-funding and disproportionate focus on policy areas. Meanwhile, defence firms are crippled by squeezed fees and cash-flow crises at the hands of the LAA. This all leads to delays in proceedings. Delays in trials. Delays in justice being done.

It used to be the mantra of the Powers That Be that we must all “stop delaying justice”. Raise issues early. Get disclosure and service early. Get trials to be effective.

Now it seems that it’s only defendants who hold the answer and to “delaying justice” and the State thinks that is for them all just to plead guilty.

 

Views expressed in this article are those of the author and do not necessarily reflect those of all members of Central Chambers.

If you would like to instruct Mr Knight, please contact his clerks by calling 0161 2361133 or via email to clerks@centralchambers.co.uk

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Kirstin Beswick secures an acquittal in Bank of England case. http://www.centralchambers.co.uk/kirstin-beswick-secures-acquittal-bank-england-case/ http://www.centralchambers.co.uk/kirstin-beswick-secures-acquittal-bank-england-case/#respond Thu, 25 May 2017 15:23:40 +0000 http://www.centralchambers.co.uk/?p=2027 This month, Kirstin Beswick secured an acquittal for man charged with defrauding the Bank of England, theft and money laundering. In this unusual and interesting case, the defendant had found some £48,000 in bank notes […]

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This month, Kirstin Beswick secured an acquittal for man charged with defrauding the Bank of England, theft and money laundering.

In this unusual and interesting case, the defendant had found some £48,000 in bank notes in a pile of rubbish at his waste disposal yard. The money was in poor condition and was not immediately usable.

Knowing he might be able to exchange the notes for their face value, the Defendant kept the money for a time and did not tell the police of the find before attempting to change it.

Miss Beswick claimed that the defendant had a right to the money and did not act dishonestly because as soon as anything hits the floor in his yard, it belongs to him.

The prosecution tried to present the case a simple case of ‘theft by finding’ but the Jury rejected that and swiftly found the defendant not guilty

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Dr Alexander Khan and Howsoon Semega-Janneh join Central http://www.centralchambers.co.uk/dr-alexander-khan-howsoon-semega-janneh-join-central/ http://www.centralchambers.co.uk/dr-alexander-khan-howsoon-semega-janneh-join-central/#respond Fri, 07 Apr 2017 19:58:55 +0000 http://www.centralchambers.co.uk/?p=1942 Central Chambers continues its unprecedented spur of growth and expansion of expertise with the news that that these two excellent barristers have joined from Coral House Chambers.   Dr Alexander Khan is a chancery and […]

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Central Chambers continues its unprecedented spur of growth and expansion of expertise with the news that that these two excellent barristers have joined from Coral House Chambers.

 

Dr Alex Khan

Dr Alexander Khan is a chancery and family expert. He has practised as Chancery, family and commercial counsel for over 15 years. Before that, he spent 5 years in corporate management and marketing.

Alex now advises SMEs and individuals, as well as acting for and against banks and other large organisations.

Having also practised law in Dubai, Alex has many legal contacts around the globe that can assist with international matters such as offshore accounts, international disputes and cross-border enforcement.

 

 

Howsoon Semega-JannahHowsoon Semega-Janneh is a fully-qualified lawyer in the Gambia and a barrister of England & Wales.

He has over 23 years’ post-qualification experience combined as a legal practitioner.

He has worked as a government lawyer and as a private legal practitioner involved in criminal law (both defence and prosecution), acting as counsel for the plaintiff and defendant in civil litigation, drafting government legislative bills, drafting commercial, Intellectual Property and IT contracts.

Both new additions accept Direct Public Access instructions.

If you would like to instruct either counsel, please do not hesitate to contact the clerks room on 0161 2361133 or by email.

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Bernard Richmond QC Appointed as Part-Time Judge on Isle of Man http://www.centralchambers.co.uk/bernard-richmond-qc-appointed-as-part-time-judge-on-isle-of-man/ http://www.centralchambers.co.uk/bernard-richmond-qc-appointed-as-part-time-judge-on-isle-of-man/#respond Fri, 10 Feb 2017 10:41:55 +0000 http://www.centralchambers.co.uk/?p=1834 We are pleased to announce that, in addition to his appointments as a Recorder and Assistant Coroner, Bernard Richmond QC has been appointed to the panel of Deemsters of the Isle of Man.  Deemsters sit […]

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Coat of arms of the Isle of Man

We are pleased to announce that, in addition to his appointments as a Recorder and Assistant Coroner, Bernard Richmond QC has been appointed to the panel of Deemsters of the Isle of Man.  Deemsters sit in the High Court and Court of General Gaol Delivery on the Island and hear the most serious cases.

There is a long tradition of members of the Bar, particularly from Chambers in the North, being appointed to support the work of the full-time judiciary on the Island.   Appointments, similar to those of Deputy High Court Judges and Recorders, are fee-paid and those appointed remain in full-time practice.

 In addition, Bernard has been appointed a Deputy High Bailiff on the Isle of Man.   This will permit him to sit as a Coroner on the Island.

Bernard has been involved in teaching on the Isle of Man in recent years and has undertaken advisory work on Isle of Man cases.

 

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Mark Shanks joins Central Chambers http://www.centralchambers.co.uk/mark-shanks-joins-central-chambers/ http://www.centralchambers.co.uk/mark-shanks-joins-central-chambers/#respond Mon, 30 Jan 2017 15:18:50 +0000 http://www.centralchambers.co.uk/?p=1825 Central Chambers is pleased to announce that Mark Shanks (2011) will be joining us from the 1st February 2017. Mark joins us after working as ‘in-house’ Counsel at Khattaks Solicitors. Whilst there he gained a […]

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Central Chambers is pleased to announce that Mark Shanks (2011) will be joining us from the 1st February 2017.

Mark joins us after working as ‘in-house’ Counsel at Khattaks Solicitors. Whilst there he gained a wealth of experience in all aspects of criminal law, from the magistrates’ court through to the Court of Appeal.

A full CV will be uploaded upon him commencing his practice with us.

He is a welcome addition to Chambers.

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Family Counsel Sought http://www.centralchambers.co.uk/family-counsel-sought/ http://www.centralchambers.co.uk/family-counsel-sought/#respond Tue, 22 Nov 2016 20:19:43 +0000 http://www.centralchambers.co.uk/?p=1807 Central Chambers is delighted to invite applications from family barristers, either established or recently-qualified. We are in the strong position of having a surfeit of instructions and are keen to take this opportunity to expand […]

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Join Us

Central Chambers is delighted to invite applications from family barristers, either established or recently-qualified.

We are in the strong position of having a surfeit of instructions and are keen to take this opportunity to expand our family team.

Perhaps you are looking to relocate from elsewhere in the country? Maybe you are looking for a set that will allow you closer ties with your instructing solicitors and more control over your practice?

Ideally, we would appreciate applications from those with experience in all areas of family proceedings including public law and ancillary relief but welcome all applications.

All applications will be treated with discretion and confidentiality.

Send a CV and covering letter to benjamin.knight@centralchambers.co.uk

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“DASH” – Domestic Abuse, Stalking and Harassment http://www.centralchambers.co.uk/dash_and_domestic_abuse/ http://www.centralchambers.co.uk/dash_and_domestic_abuse/#respond Fri, 21 Oct 2016 08:18:22 +0000 http://www.centralchambers.co.uk/?p=1805 By William Staunton Many cases dealt with before the Criminal Courts involve an element of domestic violence and domestic abuse. Domestic abuse is any type of controlling, bullying, threatening or violent behaviour between people in […]

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By William Staunton

Many cases dealt with before the Criminal Courts involve an element of domestic violence and domestic abuse.

Domestic abuse is any type of controlling, bullying, threatening or violent behaviour between people in a relationship. It includes emotional, sexual, financial or psychological abuse. To see just how wide the definition has become in the most recent law reform in this area, you can review the government’s new policy document here.

In dealing with such cases an important source of material has become the DASH checklist which must be completed for all cases of domestic abuse by front line staff. It was developed by Laura Richardson behalf of ACPO and CAAD after research found, according to the author of the scheme:

Conclusions from many domestic homicides and serious case reviews showed:

  • lack of understanding and training regarding risk identification, assessment and management
  • insufficient risk identification, assessment and management
  • insufficient information sharing
  • failure to manage the intelligence
  • failure to make the links across public protection and serial offending.

The DASH (2009) Practice Guidance on Risk Identification and Checklist makes the obtaining of the necessary facts a straightforward exercise. The checklist poses fundamental questions such as, “Were you frightened?” and, “When did this last happen?” but it also seeks to gather far more statistically important data with the goal of saving lives through early risk identification, intervention and prevention.

Tragic examples where such assessments were not carried out, such as the murder of Jane Wiggett, underline the importance for the purposes of public protection of the gathering of such information.

An additional aim of the system is to harmonise and standardise the metrics used to make assessments of risk across the various professionals who need to make such assessments.

From an advocate’s standpoint, tribunals of fact always seem impressed if police officers are questioned about DASH and its application to a given case. Police witnesses should be in a position to answer whether it was felt appropriate to obtain such information as part of an investigation and if not why not.

It is probably a good idea for advocates to be familiar with DASH. It can be found here in a downloadable format.

The Probation Service provides excellent Building Better Relationships programmes for those who have developed controlling behaviour. Courts will tend to look to such programs as methods of disposal where the Defendant appears willing to change. Although it is difficult to keep up with the constantly changing palette of probation programmes and courses, those advocates mitigating in domestic abuse cases would do well to read the information published about BBR programmes in their area. The information is usually available with a quick web search.

Being knowledgeable about these ongoing systems and initiatives is part of being an informed advocate and the above only scratches the surface. To find out more, feel free to contact Chambers to discuss any questions you may have.

 

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The Court of Protection – Is it a “secret court”? http://www.centralchambers.co.uk/court-of-protection/ http://www.centralchambers.co.uk/court-of-protection/#respond Fri, 14 Oct 2016 09:00:45 +0000 http://www.centralchambers.co.uk/?p=1799 By Nazmun Ismail There has been much in the media recently about the “secret court” and the work of the Court of Protection. The Court of Protection makes clear that it operates by applying the […]

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By Nazmun Ismail

There has been much in the media recently about the “secret court” and the work of the Court of Protection.

The Court of Protection makes clear that it operates by applying the Mental Capacity Act 2005. It suggests that there are five principles which are to be applied when an application is made:

  1. A person must be assumed to have capacity unless it is established that he lacks capacity.
  2. A person is not to be treated as unable to make a decision unless all practical steps to help him do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. Section 4 of the Act consists of a checklist to help the court or decision-maker determine whether something is in the person’s best interests.
  5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

 

The Court of Protection deals with two main branches of case. One branch concerns “health and welfare” cases. The other branch is “property and finance” cases. On many occasions, the two will be combined.

Examples of property and finance cases include resolving matters arising in respect of persons with dementia. There may not be a clear way forward on how the person concerned’s money is to be spent but (s)he lacks capacity to be able to do so. There may also be disputes as to how the money has been spent in the past by someone who has the benefit of a Power of Attorney. The Office of the Public Guardian invariably brings such cases and Respondents, usually, family members then provide their evidence.

 

In respect of Health and Welfare cases, by far the biggest area that the Court of Protection deals with relates to section 21 Deprivation of Liberty Safeguards (DOLS) cases. How is a person who lives in a care home or similar institution to be cared for if there is a risk to herself/himself if left in the community without carers? The Mental Capacity Act 2005 provides mechanisms for authorising the deprivation of liberty of a person who cannot consent when that is necessary for their care or treatment in their best interests .

There is no doubt that Court of Protection cases involve stressful and emotional difficulties for families involved in them, but the expertise of the Court of Protection is overseen by many experienced Judges across England and Wales. The days when all cases were heard in London have long passed. Nor is the Court of Protection really a “secret court” because for some time now there has been a pilot scheme whereby members of the media and of the public can make themselves aware of cases which are taking place, albeit the names of the parties involved will be anonymised.

Nazmun Ismail is a specialist barrister in Court of Protection, Human Rights, Public Law and Family Law.

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