News  

2 December 2011

Child Exploitation 

The national action plan for tackling child sexual exploitation, published on 23 November 2011, brings together for the first time actions by the Government and a range of national and local partners to protect children from this largely hidden form of child abuse.
The action plan looks at sexual exploitation highlights areas where more needs to be done and sets out specific actions which government, local agencies and voluntary and community sector partners need to take to address this horrific form of abuse.

The plan aims to bring together actions by the Government and partners to protect children from this largely hidden crime. These include:

• Work with the Association of Chief Police Officers, health professional bodies, and the Social Work Reform Board to make sure child sexual exploitation is properly covered in training and guidance for frontline professionals. 
• Local Safeguarding Children’s Board is to prioritise child sexual exploitation and undertake risk assessments.
• Support organisations like Rape Crisis, and local sexual assault referral centres, to improve services for young victims. It will also look at raising awareness by improving sex and relationships education in schools.
• The police, the Crown Prosecution Service, judges and magistrates to fully support young witnesses and victims, and increase the use of 'special measures' in court to ease the stress and anxiety of criminal proceedings on young people.

The issue of children being exploited has not been fully recognised and tackled. The Tackling Child Sexual Exploitation Action Plan is one of the biggest steps forward to proactively deal with the issue. Particular emphasis has been given on protecting children in the care system and councils are to work together to ensure children are not being trafficked across county boundaries, this is the first step to recognising the size and scale of a child protection problem.

1 December 2011 

"HOT TUBBING" – A new way to hear expert evidence?

Normally in the family courts if experts are appointed by the court to undertake assessments of the parents or the children sometimes they are also required to give evidence in court. If the experts are required to give evidence at court they will usually do so separately and not be able to hear each other’s evidence.

Recently in the South of England experts within family court proceedings have given evidence concurrently, being sworn in to the witness box
at the same time and being able to hear each other’s evidence and comment upon it. Expert evidence given in this way has been colloquially referred to as “hot tubbing”.

The aim of hot tubbing is for the experts to be given topics that they are likely to be questioned about prior to the hearing. These topics are likely
to be the key issues in the case. The experts are sworn in together and the Judge will ask them to give their views on each topic in turn. The experts are encouraged to explain their responses to the topics and are also to ask each other questions. The idea is for the experts to start a healthy debate which is chaired by the Judge. At the end of the “debate” they are asked to summarise their views and then the advocates involved in the case are allowed to cross examine each expert in turn.

The fact that the experts can hear each others evidence and comment on what they are hearing or being asked about can narrow the issues in the case and mean that less court time is required to hear expert evidence. The process of hot tubbing was first used in he UK in the case of A Local Authority v A (No 2) (2011) EWHC 590 where Mr Justice Ryder heard evidence from three expert witnesses instructed in care proceedings (two psychiatrists and one psychologist) at the same time.

Mr Justice Ryder was impressed at the coherence of the concurrent evidence and also the amount of court time that it saved. It took in total 4
hours for all three experts to give their evidence concurrently rather than the three days which had been set aside initially for each expert to give their evidence separately.

Emeryjohnson are currently involved in a case where “hot tubbing” has been used. The fact that the experts were able to hear each other’s evidence and then comment upon it was particularly helpful in narrowing the issues in the case and focusing the court and the advocates on the way forward.

25 November 2011

Been arrested, charged or summonsed for a Driving offence?

At Emery Johnson we have an experienced team that deal with all aspects of driving matters, from speeding to dangerous driving (including the most serious driving offence of death by dangerous driving).   Depending on your earnings and the nature and seriousness of the allegation, you may be eligible for legal aid!  We also offer competitive private client rates for those who are not eligible for legal aid.   Contact our Loughborough or Leicester office for further information.  In some circumstances, it can be crucial to any defence you may have to seek expert advice as soon as possible. 

If you are arrested and to be interviewed for a driving offence at the Police Station, you will always be entitled to free legal advice in person or via the telephone, and so you should not hesitate in taking up that right! 

Types of driving matters that Emery Johnson has experience dealing with include:- 

Drink Driving and Drunk in Charge of a motor vehicle

Speeding

No Insurance

Dangerous and Careless
Driving (including death by careless and death by dangerous driving)

Penaltypoints on your licence  (totting-up)

Failing toprovide a specimen of breath

Vehicle Defect
Offences

Traffic light offences

Failing to stop,
Failing to report

Totting–up those points?

If a driver accumulates 12 points on their driving licence within any three year period, the law states that the court should disqualify the driver for 6 months minimum. In some cases, it may be possible to argue that you would suffer exceptional hardship where you face disqualification as a totter. Unless the court can be satisfied on the ‘balance of probabilities’ that exceptional hardship would follow, it must impose the mandatory disqualification. If exceptional hardship is shown, the Court can choose to reduce any disqualification or not disqualify you at all!

The court will consider whether if you were to receive a period of disqualification, if you would require either a financial and emotional hardship.   They will not only consider what hardship you will suffer as a result of the disqualification, but also family members, employees and people that you might care for.  This argument can only be used to avoid a disqualification once in any 3 year period so it is important to seek advice if you think you or others in your care would suffer some kind of hardship if you were to be disqualified.

If you are a new driver, you will be subject to the New Driver Provisions, and if you accumulate 6 points within 2 years of passing your driving test, your licence will be revoked and you will have to retake your theory and driving test. 

Special Reasons

You may have heard that it is possible to avoid a disqualification through special reasons.  Unlike exceptional hardship, a special reason is a unique individual circumstance which relates directly to the commission of the offence.  If the court accepts that a special reason exists then a driver may receive a lower disqualification or penalty, or in some cases, no penalty at all!  It is important to remember that the driver will still have a conviction.   So if you were charged with drink driving, and you accept that you were drink driving, but a special reason exists, a drink driver may be able to avoid the 12 month minimum mandatory disqualification.

What might constitute a special reason?  Laced or spiked drinks or an emergency situation are examples of arguments for special reasons.

It is not easy to argue a case of special reasons!  The court will want to know the nature and seriousness of the situation requiring you to drive, why nobody else could have driven or why the emergency services could not have assisted, whether the commission of the offence actually
benefitted the situation and the risk posed to the public.  If your drink was spiked, why you didn’t notice that you were under the influence.

If you need any advice in relation to the totting up of points, an exceptional hardship argument, special reasons, or anything else in relation to a driving offence, please get in touch to speak to someone in our specialised team.

 

23 November 2011

Whenever a prisoner is accused of taking drugs and provides a positive drug sample there is little doubt that adjudication will follow. However the Mandatory Drug Test (MDT) is split into two samples so that if a prisoner wanted to, they could get their solicitor to get one of the samples independently analysed.

In order to get the sample independently analysed, certain time scales need to be followed:

1)      Either the prisoner or their solicitor needs to be sent a copy of the procedure for testing a MDT sample independently within 3 days of the original sample being taken.

2)      The prisoner or solicitor will then have four weeks to ask the prison to release the sample to the laboratory for the purpose of independent testing.

3)      Once the sample has been released, the laboratory has 14 days in which to test the sample and return the results back to the prison.

All in all, the process should not take more than 6 weeks from the moment the MDT has been taken. However there can be delays. If the delay is a result of the prisoner or solicitor then reasonable explanations will have to be given. If there are no reasonable explanations then the
adjudication can continue on the evidence that it already has.

If the delay is the result of the prison, then an extension of time is allowed, though some will argue that the extension can only be of a reasonable nature.

There are some defences to a charge following a positive MDT. The first is that the drug in question was in the lawful possession of the prisoner for his own use.  The second defence is that the drug was given to the prisoner without the prisoner knowing. The final defence is that the drug was given to the prisoner under duress or without his consent, and done so in a way that nobody would be reasonably expected to resist.

If you have a family member who needs help with MDT’s or any other aspect of prison law then please contact either our Leicester office
on 0116 255 4855 or our Loughborough office on 01509 610 312 to speak to someone from the criminal department.

 

16 November 2011

National Lottery win is ‘Non Matrimonial Property’ according to the High Court

 

In S v AG (financial remedy: lottery prize) [2011] EWHC 2637 (Fam) Mr Justice Mostyn decided that the wife’s initial lottery win of £500,000 during the marriage was non matrimonial property in what is said to be the first case of this sort.

When determining financial remedy cases the court has to consider Section 25 of the Matrimonial Causes Act 1973.

Section 25 factors:

(a)  the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;

(b)  the financial needs, obligations and responsibilities which each of the parties to   the marriage has or is likely to have in the foreseeable future;

(c)  the standard of living enjoyed by the family before the breakdown of the marriage;

(d)  the age of each party to the marriage and the duration of the marriage;

(e)  any physical or mental disability of either of the parties to the marriage;

(f)   the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for your family;

(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;

(h) in the case of proceedings for divorce or nullity of marriage, the value of each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

Justice Mostyn when considering the husbands 'need' held that the husband had a need of £82,000 to provide for his old age. This would leave wife and her new partner with enough money to provide for their old age.

When considering the notion of ‘sharing’, Justice Mostyn considered the fact that the wife had been playing the lottery herself without the husband knowing and bought the tickets from her wages. Wife however bought a house with the winnings and although the initial £500,000 was regarded as non matrimonial property, the house was regarded as matrimonial property.

In the landmark case of White v White [2000] UKHL 54 the courts were instructed to assume equal division of the parties assets. The ruling in S v AG shows that the courts seem to be heading away from an equal division of assets, with the focus being more on protecting the interests
of the one party who acquired the asset(s) through their own efforts.

For advice and/or representation in divorce and financial proceedings or to discuss mediation in these matters, please contact the Family department on 0116 2554855.

 

14 November 2011

 Double Jeopardy 

Under the Criminal Justice Act 2003, those found not guilty of certain serious offences can be ordered to face a second trial.

Any retrial has to be approved by the director of public prosecutions, it must be in the public interest, and the appeal court must first quash the previous acquittal.  In order to do so it must be satisfied that there is new and compelling evidence against the defendant. 

Gary Dobson was the subject of a private prosecution for the murder of Stephen Lawrence in 1996.  He was acquitted after the trial
judge ruled identification evidence to be inadmissible.

A cold case review, which began in 2007, used new scientific techniques on clothing belonging to Gary Dobson and David Norris, originally seized by police in 1993.

The prosecution claims that the new forensic evidence from that review, involving microscopic fibres and blood traces, ties Gary Dobson and David Norris to the group that murdered Stephen Lawrence 18 years ago. It is this evidence that the Court of Appeal considered to be new and compelling and as a result of which the acquittal of Dobson was quashed and his retrial allowed.

Gary Dobson and David Norris are currently on trial at the Old Bailey and their barristers will argue that, over 18 years, the risk of exhibits becoming contaminated was so high that the forensic DNA evidence the prosecution relies on is fatally flawed.  They claim that the prosecution
case relies on tiny fragments, so small they could have accidentally been transferred from other exhibits over 18 years.

If you want further advice in relation to a criminal matter please contact a member of the crime department on 0116 2554855. We also offer 24 hour police station advice and assistance.

 

11 November 2011

Longer Working Hours for Magistrates? 

There are proposals for Magistrates’ Courts to sit over evenings, during the night and for longer over the weekend. These proposals are as a result of the recent riots, where Magistrates’ had no option but to sit late into the evening and often through the night in order to deal with those who had been arrested. During this time a significant increase in the speed at which cases were dealt with was noticed.

It is believed that if the proposals come into force it would greatly benefit the Criminal Justice System, as it could result in a more diverse group of Magistrates because younger people who work during the day would be able to sit as Magistrates in the evening after work and at weekends.

The chair of the Magistrates’ Association is in favour of the proposal as it would increase the diversity of Magistrates and the speed at which cases are dealt with. The Magistrates’ Association has made it clear that Magistrates should also sit during the day and that the proposal for evening and weekend sittings would be in addition to this.

There are some concerns that if the proposals come into force it would lead to an increase in costs as court staff, prosecutors and probation workers would need to attend court outside of the normal 9am-5pm working hours which could prove costly. There are also concerns from defence practitioners about how the extended hours would impact on the firm as clearly representation will be required by their client, even into the evening.

If you want further advice in relation to a criminal matter please contact a member of the crime department on 0116 2554855. We also offer 24 hour police station advice and assistance.

10 November 2011

To Marry or not to Marry?

Couples who live together but do not marry could have more protection under the law than married couples who sign a pre-nuptial agreement,
says emeryjohnson.  

While pre-nuptial agreements, or pre-nups as they are commonly known, are not binding in the courts, cohabitation agreements are legally
binding. Couples who sign a cohabitation agreement could potentially be in a better legal position than their married counterparts should the relationship breakdown.

Emma Mitchell, Partner, at emeryjohnson says:

“While pre-nups have yet to fully recognised as binding in the courts the cohabitation agreement is recognised. There is a greater need for
cohabiting couples to make these agreements as they do not have the same automatic rights that married couples have when the relationship breaks down. Contrary to what some people believe there is no such thing as a common law husband or wife.

“The reason cohabitation agreements are enforced by the courts is because there is no other legal protection for unmarried couples who live
together and then separate. A well drafted cohabitation agreement could cover every eventuality so that a separation is fair in terms of dividing up the ownership of property and other assets.”

Emeryjohnson points out that while pre-nups are not yet legally binding, the courts are using them more frequently as a guide in separation
cases.

Emma Mitchell adds: “There is a growing trend of reliance on pre-nups when married couples divorce, but should the terms of the agreement be
disputed by either spouse, the courts cannot necessarily insist it is followed. “Cohabiting couples and couples looking to be married should each
seek legal advice from their solicitor when drafting these types of agreements. Often, there is more than a home that needs to be considered.

“Obtaining an agreement such as this is not the most romantic gesture and is often the last thing couples moving in together want to think
about, but should anything go wrong in future the cost spent on a cohabitation agreement is likely to be a lot less than going to court to resolve any disputes.”

The Law Society's Family Law Committee recently urged cohabiting couples, in the absence of legal rights, to write wills to ensure their partner
does not go without should they pass away. Without one it is possible a person could end up with nothing from their partner’s estate.

For more information or to make either a cohabitation or pre-nuptual agreement contact emeryjohnson on 0116 2554855.

 

 

9 November 2011

A Very Successful EmeryJohnson Mediation Event

EmeryJohnson hosted a very successful mediation event on Thursday 3^rd November 2011.  Many local businesses, charities and legal
professionals attended to hear from our two mediators, Joanne Donald and Samena Bibi. 

Due to the introduction of the Family Procedure Rules 2010, and the recent government proposals to reduce access to legal aid for family work, mediation will be increasingly used as an alternative to resolving disputes rather than using the Court process. The event provided an opportunity for Jo and Samena to provide valuable information about the important role of mediation in the legal process, and the support they are able to provide to couples facing a breakdown in their relationship.

The mediation event also provided an opportunity for those in attendance to network and forge stronger relationships with other professionals in the area.

Currently emeryjohnson are not able to offer Legal Aid for full Mediation but can offer privately funded Mediation.
Should a client be interested or need to be referred to Mediation, Jo and Samena can accept Privately Funded Mediation Referrals.  Please do not hesitate to contact the office on 0116 2554855 to speak to Jo or Samena who are always on hand to discuss your matter.

Following the success of our first mediation event, EmeryJohnson are looking forward to hosting further events in the future.  Please keep posted
for further information.

 

8 November 2011

Home Detention Curfew

A Home Detention Curfew (HDC) is a scheme that allows certain offenders to be released earlier but subjected to an electronically monitored
curfew. The scheme allows the Governor of the prison to assess whether a prisoner should be released on HDC. All prisoners serving more than 3months but less than 4years are presumed suitable for HDC provided they do not fall into one of the following categories: -

1. Are serving an extended sentence;
2. Are serving a sentence for being unlawfully at large (absconding/failing to return);
3. Have previously breached a curfew order or were recalled for breaching the HDC scheme;
4. Detained under mental health provisions;
5. Subject to notification requirements under the Sexual Offences Act 2003;
6. Liable for removal from the UK;
7. Early Release Date for HDC is less than 14 days from the halfway point of sentence.

In addition to the above exceptions, the prisoner will be presumed unsuitable for HDC if s/he has a history of sexual offending (regardless
of current offence), homicide offences, possession of offensive weapons or firearms and racially aggravated offences unless there are exceptional circumstances. It is at the Governor’s discretion as to what circumstances are exceptional.

Eligible prisoners will have to satisfy the risk assessment before they are released early on HDC. The Governor will look at the following factors in order to decide whether to release a prisoner on HDC: -

1. The prisoner’s risk to the public;
2. The prisoner’s risk of re-offending;
3. The prisoner’s likelihood of failing to comply with the conditions of the curfew; and
4. The address put forward by the prisoner.

The crime department at emeryjohnson solicitors deals with various prison law matters. Should you require legal advice and assistance with Home Detention Curfew, please do not hesitate to contact us at the Leicester or Loughborough office.   

3 November 2011

EMERYJOHNSON MEDIATION EVENT

Emeryjohnson are holding a mediation event this evening at our offices from 5pm-7pm! We look forward to seeing you there!!’

 

1 November 2011

Sentences of imprisonment for public protection (IPPs)

 Sentences of imprisonment for public protection (IPPs) were introduced by the last Labour Government from 2005. They were designed to ensure that dangerous violent and sexual offenders stayed in custody for as long as they present a risk to society. Under the system, a person who has committed a specified violent or sexual offence will be given an IPP if the offence was not so serious as to merit a life sentence. Once they have served their ―tariff they will have to satisfy the Parole Board that they no longer pose a risk before they will be released. By June 2010, there were more than 5,600 people serving IPPs.

There have been a number of concerns in respect of IPP sentences, the main ones being: 

1. 
   Less serious offenders have been given very short tariffs but then have been kept in prison for a long time after these have expired
2. 
    The prison and parole systems could not cope with the need to give all these short-tariff prisoners appropriate access to rehabilitative and resettlement programmes so that they could demonstrate they were no longer a risk to society
3. 
    The administrative delays resulted in uncertainty and perceived injustice for prisoners and litigation
4. 
    The rapid increase in the numbers of those on IPPs contributed to prison overcrowding, which in turn exacerbated the problems with providing rehabilitation

The government reviewed the current legislation and concerns which resulted in administrative improvements and a new “seriousness” threshold introduced by the Criminal Justice and Immigration Act 2008, which would have to be satisfied before the court could impose an IPP sentence.

The new seriousness threshold came into force on 14 July 2008 and applies to offenders sentenced on or after this date. The offence must deserve at least two years of actual time in prison. This means a tariff set after this date will be for two years or more.

It is expected that the Government will consider further amendments on IPPs in the Legal Aid, Sentencing and Punishment of Offenders Bill which is due to be debated at the end of 2011.

If you have an IPP Sentence, and are awaiting parole please contact a member of the criminal department on 0116 2554855.

27 October 2011

Former Legal
Aid Minister Lord Bach fighting against legal aid cuts.

 

Lord Bach, a former Legal Aid Minister has scheduled a House of Lords motion calling for the statutory instrument that introduced 10% cuts to legal aid lawyers’ fees to be annulled.

Lord Bach has managed to organise a debate to discuss the proposals which aim to cut fees in Public Law legal aid work by 10% from February 2012. Lord Bach states that, “the reduction in civil standard and graduated fees for legal help and help at court will seriously undermine access to justice, because it threatens the financial viability of already hard-pressed community legal practitioners who carry out an essential service to those least able to afford it, including the most vulnerable in our society.”

The motion will be debated in the House of Lords before the Legal Aid, Sentencing and Punishment of Offenders Bill reaches it’s third reading in the House of Commons on the 31^st October 2011. There has already been a lot of opposition to the government’s proposed private family legal aid cuts and recently an alliance of groups opposed to the cuts have joined forces to publish a manifesto entitled “Family Justice” which is
aimed at urging MPs to reconsider the proposals.

The groups opposed to the cuts  are concerned about the impact that removing legal aid for private law family cases will have on women, children, families and victims of domestic violence.

Lord Bach states that the legal aid fee cuts and planned scope changes were already having an impact on organisations, including the Law For All, a registered charity which was established in 1994 and provided advice on social welfare law to vulnerable people who were otherwise financially unable to access legal advice. They provided advice to people throughout Suffolk, Norfolk, Cambridgeshire, Northamptonshire and
Staffordshire. The majority of Law For All’s income came from the Legal Services Commission and due to cuts over recent years and even further cuts to publically funded work being proposed in 2012 the trustees of Law for All decided that there was not a viable future for the organisation and the charity is currently being controlled by administrators whilst a small number of staff are still working to see through existing cases to their conclusion.  

Emery Johnson are actively involved locally in petitioning against the proposed legal aid cuts and will keep the news page of the website updated with any changes once the bill has been debated.

 

11 October 2011

Does Life Mean Life?

In England and Wales, the only offence for which life imprisonment is mandatory is murder.  Other offences such as manslaughter and rape carry a discretionary life sentence.    

It is often reported in the news that offenders are released from prison after only a few years of a so called ‘life’ sentence.   It is true that a trial judge when sentencing an offender will set a ‘minimum term’ that an offender is to spend in prison before being eligible for ‘parole’.   In addition, some of the most infamous criminals have been sentenced to what is known as a ‘whole life tariff’, which means for those prisoners, life  imprisonment really does mean imprisonment for the rest of their life.   

There are currently only around 25 prisoners serving whole life sentences, including Myra Hindley and Ian Brady.The Home Secretary can order that a prisoner serving a whole life sentence can be released on compassionate grounds, but since the order was introduced in 1983, only four prisoners have been released under this heading, despite approximately 50 prisoners being sentenced to the order.  Reggie Kray was released on compassionate grounds after serving 32 years in prison due to suffering from terminal cancer and he died of his illness only a few weeks
later.  The other three were all IRA members released under the Good Friday Agreement in 1999.  The Criminal Justice Act 2003 indicates that a whole-life order would normally be the starting point in any case where two or more murders are committed involving a substantial degree of premeditation, or sexual or sadistic conduct. 

Higher minimum terms will be set for the gravest of crimes where a whole life tariff has not been set, for example in Ian Huntley’s case where the
Home Office ordered that he must serve at least 40 years in prison until being ‘eligible’ for parole.   Mr. Justice Moses said when setting this
minimum term that, "The order I make offers little or no hope of the defendant's eventual release”. 

The average length of time that an offender will usually serve for murder before being eligible for parole is 15 years, although it is not unknown for those convicted of other offences such as manslaughter to be  given a minimum term of only a few years.  Once eligible for parole a prisoner can
apply to the Parole Board to be released. The Parole Board will assess their risk to the public and if the prisoner is still considered to pose a risk then they will not be released.  If the Parole Board assesses the risk as low then they will make a recommendation for the release on licence of the offender to the Home Office.  

Once a prisoner given a life sentence is released on licence, they will be on licence for the rest of their life - a so called ‘life licence’, and will be recalled to prison if they commit further offences, fail to comply with the conditions that have been set by the Parole Board, or if for any reason there behaviour is deemed to have deteriorated.  

It is clear then that if a life sentence prisoner is adequately rehabilitated in prison and is fortunate enough to be given a second chance of a life outside prison, the risk of being recalled to prison is something that will forever hang over their heads and not simply for committing further offences. 

At EmeryJohnson, we have assisted many offenders who are eligible for parole after having served their minimum term, and those who have been recalled to prison for breach of licence.   We are able to consider the documents which are produced by the home office in these proceedings, visit prisoners to take instructions and advise on the chances of success and how to maximise them.  We can then make  representations on behalf of prisoners, either in person or in writing.  We can and do make a difference.  If you require any assistance in this area
please contact our Prison Law team on 0116 2554855.

 

5 October 2011

Falsely accused and wrongly convicted

Miss Kercher was stabbed to death in Nov 2007 in the hillside cottage in Perugia, Italy, she shared with Amanda Knox and two Italian women.

Her bloodied body was found almost naked on the floor of her bedroom. Within days, Knox and Sollecito were arrested and charged with murder.

Prosecutors maintained that they had forced Miss Kercher into a group sex game with a third attacker, Rudy Guede, who is serving 16 years after being found guilty in a separate trial. But serious doubts emerged during the 11 month appeal over two crucial pieces of DNA evidence – a clasp from Miss Kercher’s bra and the alleged murder weapon, a black-handled kitchen knife.
It has since emerged that none of Knox’s DNA was found in the bedroom in which Miss Kercher was stabbed to death. The prosecution claimed that Knox’s DNA was on the handle of the presumed murder weapon, a kitchen knife, and Kercher’s genetic material on the blade, linking the American to the killing. They also said that Sollecito’s DNA was found on the clasp, which had been cut or torn off the bra, proving that he took part in the attack too. But a review of the evidence by two independent experts from La Sapienza University in Rome found that the DNA traces were too low to be reliable and so small that they could not be retested. The bra clasp was only found six weeks after the initial crime scene investigation, by which time it had been kicked around the floor of Miss Kercher’s bedroom, leading to a high risk of contamination.

Police and prosecutors said Miss Kercher was killed with a 6.5 inch long kitchen knife found in Sollecito’s apartment. But the blade of the knife did not match two out of three of the wounds to her neck. Nor did it match a bloody, knife-shaped smear on Miss Kercher’s bedclothes. The trial judge said that two knives must have been used; the second has never been found.

Due to these key points and others, such as lack of motive, the prosecution’s case was fatally weakened and Knox was acquitted of murder on Monday 3^rd October 2011. 

Often people think that those charged with a crime must be guilty.  The Knox case highlights this and it can be seen that people can be falsely accused and convicted of crimes.  

At emeryjohnson we have a very experienced criminal team who deal with all levels of criminal offences, including serious violence.  We recently
represented a Defendant who was charged with murder along with a second defendant. There was evidence that our client was present at the time the fatal stab wound was delivered, but little else. The prosecution case was that our client encouraged the second defendant to attack the deceased. We were successful in persuading the Judge, after the prosecution evidence had been heard, that the jury should return a not guilty
verdict. The defendant was therefore acquitted and released from custody. Her co- accused was convicted. It could so easily have been different and our client was terrified throughout the case, which took over a year to conclude, that she would be convicted of a crime she did not commit.  

If you ever require assistance then please feel free to contact emery johnson solicitors, either our Leicester office on 0116 255 4855 or our Loughborough office 01509 6101312.

4 October 2011

Road Traffic Offences occupy a considerable amount of time in the magistrates’ court and the consequences of conviction could range from penalty points to disqualification. For most road traffic offences, the defendant cannot be convicted if a ‘notice of intended prosecution’ or NIP
has been given, either at the time of the offence or within 14 days of its commission. Failing to serve an NIP, in time, can lead to a ‘technical’ defence to the relevant charge.

Some road traffic offences carry obligatory endorsement or disqualification, and as a result, a defendant can lose their licence. There is however, a way to avoid losing a driving licence, if the defendant can raise a defence of special reasons. There is no statutory definition of ‘special reasons’ but a plethora of case law has developed over the years which has attempted to explain this terminology. In Whittal v Kirby [1947] KB 194, a special reason was defined as “ a mitigating or extenuating circumstance which is connected with the commission of the offence but which is not personal to the offender and which does not constitute a defence to the charge’.

The following are examples of what the Court has accepted in the past, as an extenuating or mitigating set of circumstances:

Emergency

If the defendant had consumed alcohol but was then suddenly faced with a situation which required him to drive as an emergency,  the Court may then consider this a special reason defence. The Court will look at whether there was alternative transport that could have been used and also whether another reasonable individual would have acted in the same way.

Laced Drinks

If the defendant can establish that his drinks were spiked or laced and that he could not have suspected that they were laced, then the Court may consider this a defence of special reasons. The Court would not consider special reasons if the defendant knew that he was drinking alcohol but was mis-lead as to the strength or nature of the alcohol.

Emeryjohnson solicitors have dedicated criminal law solicitors who specialise in road traffic offences, both at our Loughborough and Leicester offices. If you are facing a road traffic offence in Loughborough Magistrates’ Court or Leicester Magistrates’ Court then contact our office on 0116 255 4855 to receive legal advice. Emeryjohnson solicitors also offer fixed fee consultations should you require some more in-depth legal advice.

30 September 2011

Young people whom cross paths with the law, may find themselves arrested and taken into custody. It can be incredibly scary and intimidating, so it is important for them not only to know their rights at the police station but also to have a criminal law solicitor there to protect there rights.

At the police station, anyone who is 17 years old or younger, or even appears to be, is considered to be a juvenile. This means that if a police officer does not know the age of a suspect and believes that they may be under 17, then the police officer must assume that they are and act accordingly. If a person is less than 10 years old then they have no criminal liability and cannot be detained.

As a juvenile there are a range of special protections afforded to them, which are the responsibility of the custody officer.

Inform a Parent or Guardian

The custody officer has a duty to identify and inform a parent, guardian, or local authority of the juvenile’s arrest, reasons for arrest and the place where they are being held. It may be that the person who is responsible for the juvenile’s welfare is needed to act as an appropriate adult.

Detained in a cell

The law also requires that a juvenile is not placed in a police cell unless there is no other secure accommodation available or if there are not any officers available to supervise the juvenile.

Appropriate Adult

The appropriate adult should be someone who has parental responsibility for the juvenile or somebody who is a social worker, if a parent is not an appropriate option. A solicitor cannot be an appropriate adult as well as a legal advisor as this could give rise to a conflict. An appropriate adult is there to support and assist the juvenile, ensure that the juvenile understands their rights and that the police are acting fairly.

Right to legal advice

As well as the above rights, a juvenile is also entitled to legal advice just like any other suspect.

Intimate Samples

If a juvenile has to give an intimate sample and they are aged under 14, the consent of the parent or guardian is required. If the juvenile is aged between 14 and 17 then the consent of both the parent or guardian and the juvenile is required.

As you can see there are a variety of legal principles and rights that govern the detention of a young person and so it is incredibly important that a solicitor is called to the police station as soon as possible, so that these rights are protected. If you require police station advice or assistance then please contact emeryjohnson solicitors which operates a 24 hour police station legal advice and assistance scheme, both in Leicester
and Loughborough.

 

27 September 2011

EMERY JOHNSON MEDIATION EVENT

 

emeryJohnson Solicitors are organising a mediation event on Thursday 3^rd November 2011 at our offices from 5pm to 7pm.  The purpose of the event is for our two solicitor mediators Joanne Donald and Samena Bibi to inform local businesses and members of the legal profession of the benefits and value of the mediation service we are able to offer to clients. 
 We aim to raise awareness of the role of mediation in family law.  It will also provide an opportunity for those joining us to network and forge stronger relationships with other professionals in the area.

The introduction of the Family Procedure Rules 2010 and government proposals to dramatically reduce access to Public Funding for family work will mean that Mediation will increasingly be used as an alternative to the Court process, encouraging communication and helping separating couples to make their own decisions regarding their separation, including the arrangements for the children, payment of bills and future of the family home. Mediation is known to assist couples to resolve their differences more quickly and as a result, keeps their costs to a minimum
yet allowing them to make the best decisions for themselves and their family.

Joanne Donald is a Family Solicitor of 13 years and Resolution Trained. Jo is able to mediate in all areas of Family Law, including children and
finances.   Jo is approved by the Family Mediation Council to conduct MIAMS referrals for both Privately Funded and Legal Help MIAMS and can provide an FM1 form, which is required now in most cases before Court proceedings can be issued. 
Samena Bibi is newly qualified and has completed the ADR Foundation Mediation Course and mediates in Children Act matters. Samena is fluent in Mirpuri and Urdu.

Currently emeryjohnson are not able to offer Legal Aid for full Mediation but can offer privately funded Mediation. Should a client be interested or need to be referred to Mediation, Jo and Samena can accept Privately Funded Mediation Referrals at a charge of £105.00 plus VAT (£126.00) per person per session of up to 1 ½ hours. We also offer a limited number of pro bono Mediations, depending upon a client’s circumstances. Please contact Joanne Donald directly for more details about this.

Please keep posted for further information in relation to emeryjohnson’s mediation event on Thursday 3^rd October 2011.  However, should you or
your client require the assistance of a mediator in the future, or you simply wish to discuss our services further, please do not hesitate to contact Joanne Donald or Samena Bibi on 0116 2554855.

22 September 2011

Forced Marriages - Not A Crime

 Earlier this year, campaigners against forced marriages and the Home Office Committee urged the government to make forced marriages a criminal offence. Criminalising forced marriages would provide a direct criminal sanction for perpetrators, rather than using court orders to protect potential victims of forced marriages.  

Forced marriage is governed under the Forced Marriage (Civil Protection) Act 2007. Under legislation, a forced marriage occurs when a person forces another into a marriage without their free and full consent. A forced marriage is not a crime, but those who carry it out may commit
criminal offences such as kidnapping, false imprisonment and harassment. The courts can use various orders as they deem necessary to
protect potential victims in forced marriage cases, such as forced marriage protection orders (FMPOs) or restraining orders in criminal courts. A breach of a court order could carry a custodial sentence. 

Despite MPs efforts to pressurise the Home Office to criminalise forced marriages, the Home Office has refused to do so. The Home Office stated that there were no statistics or information to suggest that the current legislation was failing, and that there are various methods that the
court can order to protect potential victims.

Should you find yourself in a position that you require legal advice or assistance regarding the above, please do not hesitate to contact us on
0116 2554855. 

16 September 2011

FIVE PEOPLE ARRESTED ON SUSPICION OF SLAVERY

 

At 05.30am on the 11/9/11 four men and one woman were arrested on suspicion of committing offences under the Slavery and Servitude Act 2010. 24 men who are believed to be of British, Russian and Polish origin have been removed from the Greenacres Campsite near Leamington
Spa by Police and have been provided with medical attention and assistance. The Police have reported that several of the men are suffering from Malnutrition.

More than 200 police officers were involved in the raid on Sunday Morning and the Police believe that some of the men that they rescued may have been held at the site for up to 15 years. Detective Chief Inspector Sean O’Neil from Bedfordshire Police said, “The men we found at the site were in a poor state of physical health and the conditions they were living in were shockingly filthy and cramped. We believe
that some of them had been living and working there in a state of virtual slavery, some for just a few weeks and others for up to 15 years."

Police have also reportedly seized drugs, money and weapons from the Greenacres site. Police have informed the media that some of the men rescued were living in horseboxes, dog kennels and old caravans, were made to work for no payment and were fed very little. It appears that these men have all been enticed to work for the 5 people who have been arrested after being offered payment of up to £80.00 per day with free board and lodgings. Once at the site they have been forced to work for no payment at all and little food, living in squalid conditions. Police have reported that the 24 men that have been rescued were told that they could not leave and that if they did they would be beaten or attacked.

Bedfordshire Police continue to carry out their investigation and hope that the men rescued will soon be in a fit enough state to be interviewed and provide the police with more information.

The Slavery and Servitude Act 2010 is relatively new legislation however the Criminal Team at emeryjohnson constantly keep up to date in relation to changes in the law and are available to represent you at the police station 24 hours per day 365 days per year you just need to call 0116 255 4855.

 

15 September 2011

Cameras in Courtrooms

 

The ban on television cameras being allowed to film inside law courts is to be overturned as part of plans to improve "public confidence" in the
justice system.

Justice secretary Kenneth Clarke said: "The government and judiciary are determined to improve transparency and public understanding of court through allowing court broadcasting.”

Labour launched a limited trial of courtroom cameras in the court of appeal in 2004, but nothing materialised. Under current law, cameras are banned from courts in England and Wales by section 41 of the Criminal Justice Act 1925. The only exception is the Supreme Court, where filming has been allowed for the past two
years.

Allowing TV cameras in courts has always been held back by the prospect of high profile trials descending into the media, such as the OJ Simpson trial in the US.

The government believe that opening courts to the media would help the public understand the court process, particularly after the riots in the UK.

Questions are raised in respect of appropriate safeguards which should be put in place, as video cameras in the court rooms could adversely affect the ability of victims or witnesses to give evidence effectively in court. There is also a risk of personal information and previous convictions of individuals being revealed on television.

In order to control the process only filming of the judge's summary remarks will be allowed, and a ban on filming victims, witnesses, offenders
and jurors inside court will remain.

Critics suggest that this could turn the justice system into reality TV show, which leaves us to consider whether this is really about understanding the judicial system or television show business.

 

14 September 2011

The Probation Service was created in 1907, and a statutory basis which allowed the courts to appoint and employ probation officers.  According to section 4 of the Probation of Offenders Act 1907, probation officers were then formally empowered to ‘advise, assist and befriend’. This ethos however, has changed over the past 15 years and it is now said “[g]one are the days when the main duty of probation officers was to “advise, assist and befriend” offenders. The new stated aim of the probation service: to “punish, help, change and control” offenders’.

This dramatic change in ethos is just one sign of the transition that the probation service is undergoing. Many would argue that this period of transition is more than a structural rearrangement but a change in service priorities. Yet another crack within the Probation Service is the result of a recent report from the Commons Justice Select Committee, which states that probation officers spend 75% of their time not dealing with offenders. This report has raised some serious concerns as MP’s state that “no one would suggest that it would be acceptable for teachers (who also have to do preparatory work and maintain paperwork) to spend three-quarters of their time not teaching”.

MP’s have emphasised that “the value which really effective probation officers can add comes primarily from their direct contact with offenders.”

Whilst compiling this report, evidence was heard from various probation officers. One probation work said that it was true that a routine offender may only be seen for only 10 minutes where as a serious violent offender who is about to be released would receive several hours of contact time, a week.

MP’s place the blame squarely on the recently created National Offender Management Service (NOMS), which took over the prison and probation system. MP’s stated that NOMS has encouraged a culture of bureaucracy, which has ultimately harmed those who wish to be rehabilitated.

If you have a relative or loved one in custody at this moment and you are concerned as to their treatment, then contact emeryjohnson solicitors on 0116 255 4855 and ask to speak to someone in our crime department.

 

5 September 2011

Nomination for Family Law Firm

emeryjohnson solicitors have been nominated for Family Law Firm of the year at the Family Law Awards 2011. The awards will be held on October 18th at the Hilton Hotel on Park Lane in London.

2 September 2011

There are an estimated 2,400 prisoners in England and Wales who are aged 60 or older.  Even prisoners who have paid National Insurance contributions throughout their working lives are not entitled to their pension whilst in custody.  This rule is enshrined in section 113 of the Contributions and Benefits Act 1992 which states that a person in “lawful custody” is not entitled to their pension.

Remand prisoners have their retirement pension suspended whilst in custody.  This means that you won’t actually receive any pension payments whilst you are in prison. If you are not later found not guilty or if the charge against you is dropped then any pension due to you will be paid to in a lump sum, upon your release

If you are convicted however, you only lose the right to your pension for the time you are in custody.

The National Pensioners’ Convention (NPC), which is one of the biggest organisations representing pensioners in Great Britain state that prisoners should be paid their pension in accordance with their contributions. The NPC argue that section 113 is unfair and discriminatory as those prisoners who have occupational pensions are able to receive their monies, whilst in prison. However, there is no sign of the law being changed in the near future

If you require information on prison law matters then please contact emeryjohnson solicitors on 0116 255 4855.

24 August 2011

Court rulings on twitter...a step into the digital age

 

Although final guidance is yet to be published, it seems the judiciary have welcomed Twitter with open arms. You are unlikely to find judges ‘tweeting’ about their plans for the weekend or a recent purchase however you will find information about recent court rulings.

In December 2010 The Lord Chief Justice issued Interim Practice Guidance titled “The Use of Live Text‐Based Forms of Communication (Including Twitter) from Court for the Purposes of Fair and Accurate Reporting”. The consultation on “Live, text‐based communications from court” opened on 7^th February 2011 and closed on 4^th May 2011 however final guidance from the judiciary is yet to be published.

Twitter is a social networking site where you are able to ‘post’ a ‘tweet’ up to 140 characters which is visible to your ‘followers’. Obviously no court ruling would be as short as that however you could expect a short ‘headline’ or summary with a link to the website where you could find the full judgement.

Most recently the Leicestershire police along with other forces in the UK have used twitter to publish court rulings following the recent riots.

emeryjohnson have been ‘tweeting’ for sometime. Join the revolution and follow us on twitter at http://twitter.com/emeryjohnson !!!

23 August 2011

After going through the stress of a Crown Court criminal trial you may find that matters have been decided against you and you are facing a conviction. At this stage your mind may turn to lodging an appeal. You may be able to appeal against the conviction itself or against the sentence.
The first step in lodging an appeal is to look at the written advice that is given to you by your Solicitor-Advocate or Barrister. If he or she is of the opinion that an appeal is merited it will set out the relevant facts of the conviction or sentence and the grounds on which you might appeal. If you do not have this advice then you need to get it from your solicitor-advocate or barrister as a matter of urgency as strict time limits apply. If you are legally aided a written advice regarding appeal is also covered within your representation order.

In order to have grounds to appeal against conviction the Court of Appeal must find that the  conviction is ‘unsafe’. The Court of Appeal may not always see things the way that you do and in order for the conviction to be deemed ‘unsafe’, something has to go seriously wrong during the trial. Some examples of cases where leave to appeal has been granted are:

-          misdirections by the trial judge as to law or relevant facts;

-          failure to refer to the defence properly or at all;

-          wrongful admission or exclusion of evidence,

-          bias or prejudicial publicity

In order to appeal sentence the Court of Appeal must find that the sentence you have been given is manifestly excessive or wrong in principle. In effect this means that your sentence will need to be out of all proportion to the offence or set of circumstances.

The first step is to obtain leave to appeal from the single Judge.  If you are successful the matter will then proceed to a hearing at the Court of Appeal.  At the hearing 3 High Court Judges hear from the both parties, your defence and the prosecution, before making a decision.

 If you are legally aided and have already received your written advice and disagree with the opinion within the advice you may struggle to get public funding for a second opinion. The Legal Services Commission are generally unwilling to grant funding for a second opinion and your only option may be to instruct a Solicitor or Barrister on a private basis.  

19 August 2011

Rise In Care Application Figures

Figures in relation to Local Authority applications for Care and Supervision Orders have risen significantly and have been the highest ever for the months of May and June. Cafcass statistics show that between May and June there were 856 care applications. Between April and July 2011, Cafcass received 3,213 new applications. This figure is 7.1% higher when compared to the same period last year.

This raises the question as to whether the judicial system, Local Authority and other relevant agencies such as Cafcass have the resources and means to deal with the considerable rise in figures.

There has been interim guidance in place from the Sir Nicholas Wall who is the President of the Family Division regarding the heavy workload on Cafcass and to encourage increased co-operation between agencies. However, Sir Wall and Anthony Douglas (the Chief Executive of Cafcass) announced that this interim guidance would not be renewed, their reasoning being two fold:

1. Cooperative working and information-sharing between the courts, Cafcass and other agencies being used to identify ways of improving the system locally.
2. Improved good practice in Courts by observing the detailed case management provisions of the Public Law Outline Practice Direction.

Their view is that the high demand for Cafcass services can be managed by this guidance as there is strong evidence that the successful working practices adopted by local areas to manage current workloads should be maintained. However, they are confident that the arrangements for good communication and working relations which, they say, were already in existence in some areas, will assist in managing the substantial increase and the interim guidance is no longer needed to assist with this.

If you are involved in care proceedings or social services are involved with you or any one that you may know, please do not hesitate to contact a member of the care department on (0116) 2554 855.

 

16 August 2011

The Sharing Principle of Divorce – a recent High Court Judgement

 The Daily Telegraph recently reported a High Court Judgement by Mr Justice Moylan in respect of a divorce settlement following a 25 year marriage.  The couple’s total wealth was between £21 million and £24 million, of which the Wife’s solicitors were seeking a lump sum of £6 million, on top of the £1 million in assets already in her name.

 The Husband had inherited several farms and thousands of acres of land from his father, as well as shares in a family company, a substantial investment portfolio and a shooting estate.  The Husband’s solicitors argued that this inheritance should not be included in any assets to be shared between the couple.

 Mr Justice Moylan ruled that this inherited wealth had not been as a result of their “endeavours” as a couple during the marriage and therefore should be ignored when deciding on a divorce settlement.  He ruled that the Wife should be awarded a “generous amount” based on her needs.  She was therefore awarded a lump sum of £3.3 million, on top of her £1 million assets.

 This recent High Court Judgement will no doubt set a precedent for future claims by a spouse on the other spouse’s inheritance and whether it can form part of the assets to be considered in any divorce settlement.

 Divorce proceedings can be a very stressful and painful experience for any couple, particularly when there are a large number of assets involved.  At emeryJohnson Solicitors we can offer you an initial Fixed Fee appointment so that you are able to discuss your circumstances and receive some initial advice with Emma Mitchell, Partner, or Joanne Donald, Senior Solicitor who have 19 and 13 years experience respectively in all Divorce and Financial matters.

 Please do not hesitate to contact us on 0116 2554855 to arrange an appointment.

12 August 2011

Divorce and Immigration Status

Many people stay in unhappy or abusive marriages because they believe their immigration status may be at risk if they apply for a divorce or dissolution, and that they may lose contact with any children of the marriage.  This is not necessarily the case, and there are Immigration Regulations* in place which clearly show that there are circumstances in which divorce will not affect your immigration status.

If your marriage or civil partnership has lasted more than three yearsbefore divorce/dissolution proceedings were started and any of the following circumstances apply, you may retain your right of residence in the UK:

1. You and your partner had lived in the UK for at least one yearduring the marriage or civil partnership;
2. You have custody of the children or a right of access to the children in the UK; or
3. There are particularly difficult circumstances (e.g. domestic violence) which justify the retention of the right of residence.

 However, it also needs to be shown that you fall under one of the following categories:

1. You are taking steps which would enable you to gain employment if you were an EEA national ;
2. You are a self-sufficient person (that is, you have the means to support yourself in the UK); or
3. You are a family member of a person in the UK who is either working, self-employed, or is a self-sufficient person.

 We have links with other local firms who can help you with any specifically immigration-related matters you may wish to discuss.

 If you wish to speak to a family law solicitor, please contact emeryjohnson solicitors on 0116 255 4855.

 

11 August 2011

Changes to the Interpretation Services used by Court and Tribunals

 The Ministry of Justice have announced plans to use one supplier to provide interpretation and translation services across the justice system in an attempt to cut costs. Recently a business called Applied Language Solutions (ALS) were awarded a contract to provide interpretation and translation services to the Courts and Tribunals Service and National Offender Management Service for the next 5 years. This contract could begin as early as September and the Police will also be able to use their services under this contract if they wish to.

 Other translation and interpretation providers have expressed their dissatisfaction about this decision and have raised concerns about the quality of some of the interpreters employed by ALS. They also claim that the decision was made too quickly and that many of their views were ignored in the process. In response to this ALS have said that they have the experience and ability to provide a good service and that all their interpreters will be independently assessed to ensure that they reach the required standard.

 If you require legal advice in respect of a criminal, family or child care matter and will require the assistance of an interpreter or translator then please do not hesitate to contact emeryjohnson solicitors on 0116 2554855.

2 August 2011

 We have all done it. We have all lost a wallet, a purse, a mobile phone or even a passport. Some of us have even been victim to theft or robbery and so have lost our property that way.

 Leicestershire Constabulary however have engineered an online gallery of lost or stolen goods in the hope that these goods can make their way back to their rightful owner. Tens of thousands of items are either confiscated by the police through criminal investigations or are handed in as lost property. Now the police force is listing the items along with descriptions and photographs on a website so that all can view them.

 The website was launched on Friday the 22^nd July 2011 and is believed to be the first of its kind in the country. The first items to grace the pages of the website are that of a pocket watch and a collection of framed silver coins.

 Detective Inspector Paul Wenlock states that they “recover tens of thousands of items each year and in cases where the owners of the property are not known, we investigate to identify the rightful owner, reuniting people with their property which can often have sentimental value.”

 However if you think that some of your property may be on the website then you need to act quick! Due to space restrictions, any items not claimed after being on the website for 28 days is to be sold in auction, with the proceeds going to a good cause.

 If you would like to claim your property then contact Nick Ayres or Dave Hargrave at Leicestershire police on 0116 222 2222 extensions 5266 or 5175.

28 July 2011

Independence of CAFCASS officers within Public Law Proceedings is confirmed by the Court of Appeal

 

On the 4^th July 2011 Sir Nicholas Wall, President of the Family Division gave Judgement in the Court of Appeal in the case of A County Council v K and Ors. Sir Nicholas Wall, found Cafcass management had undermined the independence of Children's Guardians by asking a family proceedings court to replace a Guardian.

 

The conflict arose in September 2010 when East Sussex Council made an application to the court for an interim care order with a care plan of removal of the child into Local Authority foster care. The Guardian and the parents opposed this care plan. The court made a ruling in favour of the Guardian and the parents and the child was placed at home with the parents under an Interim Care Order.

An agency worker later overheard social workers discussing the case. The agency worker decided to share the concerns raised by the social workers with a manager at CAFCASS. The agency worker overheard social workers involved in the case expressing concerns that the decision made by the Guardian for the child to remain at home was unsafe.

The concerns raised were discussed between the Local Authority, Cafcass and the Guardian in question. A manager at CAFCASS then wrote to the court outlining their concerns about the Guardian's recommendation to the court and stating that the Guardian had agreed to be removed from the case.

A new CAFCASS officer was then appointed to the case however this decision was not shared with the parents, the child’s solicitor or their legal representatives.

In his Judgement Sir Nicholas Wall confirmed that only the courts have the power to appoint and remove Guardians from cases and stated that in this instance that CAFCASS, had acted beyond their powers.

Sir Nicholas Wall in his Judgement said, "It was not for Cafcass to replace the Guardian. It was not for Cafcass to substitute its views for those of the Guardian. The Guardian may have been right - she may have been wrong. It does not seem to me that Cafcass followed a transparent procedure. What occurred should not have happened." 

Sir Nicholas Wall also heavily criticised the agency worker that had taken matters into her own hands and contacted the CAFCASS officers’ manager, stating that if she had concerns she should have raised them through the correct channels.

 

27 July 2011

Clare’s Law – What is it?

Clare’s law is a piece of legislation which originated from a single criminal case. The murder of Clare Wood was one that was on the front page of most newspapers. Her former partner, George Appleton, was a man known to the police because of his previous convictions.

 It still remains unclear how the law will actually function but perhaps the recently introduced ‘Sarah’s Law’ could be looked at as a model. Sarah’s law is a scheme designed to prevent the sexual abuse of children. Under the scheme, parents are able check if someone with regular access to their children has a history of child sex offences.

 Returning to Clare’s law, we have to face the reality that this law is not the solution to domestic violence. Looking at the case of Clare Wood, it becomes apparent that whilst George Appleton did have previous convictions they were not convictions that were either a) recent or b) particularly violent.

 Another aspect of this is that a seasoned perpetrator of domestic violence would not necessarily have a criminal record for a number of reasons:

1)      Victims often fail to support a prosecution;

2)      Many cases are routed via a family court where victims are seeking to have civil injunctions in place in order to protect themselves and their children.

 It is worth noting that most victims of domestic violence want assistance but lack an escape route or support network that would help them to move on with the confidence required.

If you would like any legal advice about domestic violence, please feel free to call our family department on 0116 255 4855.

22 July 2011

When should you disclose a criminal conviction?

If your conviction is spent under the Rehabilitation of Offenders Act 1974 (ROA), you do not have to disclose your conviction if your employer or insurer asks you. You are only to disclose unspent convictions to your employer or insurer when asked to do so. The aim of the Act is to resettle offenders back into the community

Whether a conviction is spent will depend on the length of sentence that was given upon conviction. Aside from the most serious criminal offences, a person who receives a sentence of less than two and half years in prison can benefit from the ROA. This means that a person will not have to disclose their conviction if they are not convicted again in a specified period, known as the rehabilitation period.

 A prison sentence of over two and half years will never be spent under the Act, and will always have to be disclosed and declared. In addition to this, the Act outlines certain jobs that are exempt from the normal rules of when a conviction is spent. For example, a person must disclose spent and unspent convictions if a job involves working with children or vulnerable people. If the job comes within the exemption, a Criminal Record Bureau check would be made which would reveal spent and unspent convictions.

The ROA does not cover formal cautions, reprimands and warnings as they are not criminal convictions, however id a person was asked by an employer or an insurer “Do you have a criminal record” then the caution, reprimand or warning should be disclosed.

A table below gives a brief summary as to when your conviction would be spent under the Act: -

Length of Sentence	Rehabilitation Period; Aged under 18 when convicted	Rehabilitation Period; Aged 18 or over when convicted
Prison sentence over two and half years	Never Spent	Never Spent
Prison sentence of more than six months up to two and half years (including suspended sentence)	5 years	10 years
Prison sentence of less than six months (including suspended sentence)	3 ½ years	7 years
Fines and community orders	2 ½ years	5 years

 

In December 2010, the Government has recognised that the current Act requires review as it fails to help reformed offenders resettle back into the society. For some cases, as a result of a CRB Check which would reveal spent and unspent convictions, it is solely the employers remit to refuse to offer a job to the applicant, and applicant cannot do anything to challenge this. Therefore, the Government do propose to reduce the length of rehabilitation periods and widening the scope of the Act so that it covers all offenders who receive a determinate sentence.

For more information regarding the Government’s consultation on effective sentencing and rehabilitation please go to

http://webarchive.nationalarchives.gov.uk/+/http://www.justice.gov.uk/consultations/breaking-cycle-071210.htm

Should you require more advice regarding this matter, then please do not hesitate to contact our criminal team.

 

 

8 July 2011

 Kenneth Clarke is back in the limelight.  The Labour front bench and right wing Tory MPs continue to attack his plans for prison reform. This will be the second, rather embarrassing, U-turn that the Justice Secretary has had to face over the past few months.

 Kenneth Clark’s plans are an attempt to tackle the explosion in the number of prison inmates. He thinks there are too many people in prison. They include limiting the power of Magistrates to remand defendants in custody whilst they await trial,  and bringing to an end the number of indeterminate sentences for public protection (IPPs) (these are sentences which do not automatically expire.  The prisoner is only released when the Secretary of State deems the risk the offender posed has been reduced).  Mr Clark’s colleagues do not by any means all agree with the notion that there should be less people in prison.  In fact those on the far right of the party think there should be more people locked up not less and a number of ministers  intend to oppose his plans.

 Political commentators are saying that Kenneth Clarke is still wounded from last week’s U-turn and that his opponents can smell “fresh blood” pointing to the fact that Downing Street has distanced itself from his previous plan to introduce a 50% discount for early guilty pleas.

 David Cameron has caused the Justice Secretary further problems with a variety of political promises. Cameron has stated that there will be a crackdown on squatters, a mandatory six-month jail sentence for anyone threatening a person with a knife and homeowners or shop owners will be able to use reasonable force to protect their properties. While these promises are yet to form part of any legislation, it will undoubtedly cause Clarke some concerns as to how his budget will be affected by these promises.

 It is estimated that the prison reforms could save approximately £50 million.

 If you need legal advice regarding your prison law matter then please feel free to contact emeryjohnson in Leicester on 0116 255 4855.

5 July 2011

Kenneth Clarke opened the Commons second reading of his Sentencing and Legal Aid Bill

The, Sentencing and Legal Aid Bill has prompted a torrent of fury from lawyers and social justice groups due to the proposals which will see cuts of £350,000,000 further limiting the areas of law for which legal aid is available. Some of the proposals include:

• employment, education, clinical negligence and welfare benefits – no legal aid will be available at all
• immigration, housing and debt -  legal aid will only be available in certain limited situations
• in the area of family law  - legal aid will only be available where there has been domestic violence
• less people will be eligible for legal aid due to a change in the eligibility levels
• legal advisors will be paid 10% less for doing the civil legal aid which remains available.  This work is already very unprofitable and will result in fewer and fewer providers doing this sort of work.

Linda Lee, president of the Law Society, which represents solicitors, said that thousands of victims of medical negligence would be denied access to justice because they will not be able to obtain legal aid and bring a claim.

"My whole career has been spent working with families and individuals that are the victims of clinical negligence," she said. "I believe these proposals will hit the most seriously injured as well as those who have sustained less severe injuries."

Lady Hale similarly said that these cuts would hit the “poorest and most vulnerable in society” as more people would then be unable to receive legal aid.

In a speech to the Law Society on Monday, she said: "There is a well-known ironic saying … that in England; justice is open to all – like the Ritz. Courts are and should be a last resort but they should be a last resort which is accessible to all, rich and poor alike. The big society will be the loser if everyone does not believe that the law is there for them."

If you would like to help save legal aid from being cut then please sign the petition and join the campaign against cutting legal aid at http://www.justice-for-all.org.uk/join-us

If you need legal aid advice in criminal law, family law or care law then please feel free to contact emeryjohnson in Leicester on 0116 255 4855 or in emeryjohnson Loughborough on 01509 635 415.

 

30 June 2011

Emeryjohnson Family Law Prize

Emeryjohnson Solicitors sponsor the De Montfort University Family Law Prize each year. The prize is awarded for the best overall performance in First Year examinations.

 We are delighted to announce that this year there are joint winners of the prize and they are Alec Richard Maxfield and Ruksar Sattar. Well done to both of you.

28 June 2011

The United Kingdom and its stance against child abduction

Its more than 30 years since the Hague Convention introduced protection against  international child abduction to protect children  “internationally from the harmful effects of being wrongful removed” from their home country.  The Convention requires that, all those who are party to it, return  children who have been removed abroad to their home country so that the Courts in the home nation can decide on their future arrangements.

 When it was drafted it was anticipated that it would principally deal with cases  in which one parent snatches a child from the primary care giver and flees the country.  The convention is now having to deal with the situation where a child was born in one country but then brought to another by one parent to be raised.  This was the position in Re E, a case that was decided in the Supreme Court last week.

 Traditionally, the English courts have always taken their treaty obligations seriously and have applied the Convention strictly. This resulted in children being returned to their countries of habitual residence, despite pleas from mothers that to do so would expose the child to a grave risk of physical or psychological harm.

 The case of Re E involved a British mother fleeing from her allegedly violent Norwegian husband with her two children. The High Court ruled, in accordance with the convention, that the children had to return to Norway so that a decision could be made in Oslo regarding their future.

 The mother appealed, claiming that the Convention conflicted with her own and her children’s rights, specifically Article 8 (right to privacy and family life) and furthermore conflicted with the United Nations Convention on the Rights of the Child.  The Supreme Court rejected this argument maintaining this country’s traditional adherence to its treaty obligations.

 However, the decision is arguably in conflict with the decision reached in a case called Neulinger in the European Court of Human Rights which decided that a forced return was an interference with the Article 8 right to privacy and family life. 

 It will be of interest to see how that case affects future decisions and how the Court reconcile this conflict.

 If you are in need of legal advice regarding family law in Leicester, or would like to get a solicitor to represent you in a family law matter, please feel free to contact emeryjohnson solicitors on 0116 255 4855.

21 June 2011

Children and young people being given a chance to express their views on the Family Justice System

 The law relating to children is contained primarily in The Children Act 1989 which came into force on 14^th October 1991. The Act introduced dramatic changes in the law relating to children in that public law (matters with social services involvement) and private law (matters surrounding contact, residence and parental responsibility) in that these matters were now governed under the same statute.

 When the Court makes decisions with respect to the upbringing of a child it must consider the welfare of the child by applying a checklist which is set out in section 1(3) of The Children Act 1989. The court has to consider the following:-

1. the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)

2. his physical, emotional and educational needs
3. the likely effect of any change in his circumstances
4. his age, sex, background and any characteristics of his which the court considers relevant
5. any harm which he has suffered or is at risk of suffering
6. how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs
7. the range of powers available to the court under this Act in the proceedings in question.

Bearing in mind the nature of Children Act proceedings which can often be acrimonious and as a result unsettling for the children, the government has in a new move invited children to give their views on the justice system. The Family Justice Review Panel has invited children to give their views on how the system can be changed to better meet their needs.

 A ‘young people’s guide’ to the Family Justice Review has been compiled by Roger Morgan, the Children’s Rights Director for England. Its aim is to assist young people to respond to the issues raised in the Family Justice Review’s interim report which makes proposals to tackle problems in the Family Justice System.

 emeryjohnson have a team of specialist solicitors and clerks who can assist you with any problems you may have which involve your children. Should you require any advice or representation please contact the Family or Care teams on 0116 2554855.

16 June 2011

Facebook in the spotlight again

 Facebook has been in the spot light for the past few years due to its many entanglements with the law. This week is no exception, as Facebook has been indirectly thrust into the light again as a criminal law trial collapses in the High Court.

 Contempt proceedings have taken place this week against a juror who contacted a defendant in a multi-million pound drugs trial, causing the trial to collapse.

 The contempt proceedings took place yesterday in the High Court in London. These proceedings coincide with an appeal made by another defendant in the trial, challenging the validity of their conviction. The second defendant alleges that they were approached by someone and asked questions about the case.

 The original trial, which collapsed last week, was estimated to cost the Criminal Justice System £6 million and took 10 weeks to conclude.

 Details came out yesterday as to how the juror, Joanna Fraill, 40, contacted the defendant on Facebook while the jury were deliberating. Joanna Fraill was visibly upset as the Court heard of her Facebook chats and messages with the defendant and her internet research.

 Fraill claimed that she did not do it with a “cavalier disregard” for the judicial process, but that she felt empathy for the defendant and thought there were “considerable parallels” in their lives.

 The court has found Joanna Fraill guilty of contempt of court and will reach a decision on Thursday as to the appropriate sentence for her.

 If you wish to appeal a criminal conviction, or be represented by a criminal law solicitor in either the Leicester Magistrates Court or Leicester Crown Court, then contact emeryjohnson solicitors on 0116 255 4855.

14 June 2011

FORCED OR ARRANGED?

 There is a common misconception that an arranged marriage is a forced marriage.

 A forced marriage takes place without the full and free consent of one or both parties. Force can include being pressurised emotionally as well as physical force. Forced marriages are not the same as arranged marriages. In an arranged marriage families take the lead in selecting a marriage partner but the couple have the free will and choice to accept or decline the arrangement.

 For sometime there was much need for legislation to particularly focus on this subject, as forced marriages can have a detrimental effect both physically and psychologically on individuals and there was little which could be done to prevent them from taking place.

 The Forced Marriage (Civil Protection) Act 2007came into force from 25^th November 2008 and protects the right to marry by choice.

 Section 63A (1) of the Act introduced a Forced Marriage Protection Order (FMPO). The order is, issued by a judge, and aims to change the behaviour of anyone who is trying to force an individual into marriage. It contains legally binding conditions on their behaviour, and if they disobey the order they can be sent to prison for up to two years.

Each Forced Marriage Protection Order is unique, as it is designed to protect you according to your individual circumstances. For example, the court may order a person or persons to hand over another person's passport or reveal where they are. In an emergency, an order can be made to protect a person immediately.

The High Court or a County Court can make a FMPO to protect a person from being forced into a marriage or from any attempt to be forced into a marriage or to protect a person who has already been forced into a marriage.

A FMPO can contain any prohibitions, restrictions or requirements and other terms that the court considers appropriate. A FMPO can be made by the court because an application has been made or, in certain circumstances the court can make an order without an application being made.

The aim of the order is to protect the person who has been, or is being forced into marriage against their wishes. The court can make an order in an emergency so that protection is in place straightaway.

The court can:

• Make a Forced Marriage Protection Order to protect a person facing forced marriage or who has been forced into marriage

• Add a power of arrest, when violence is threatened or used. This will help the police arrest a person who does not obey a court order that has a power of arrest attached.

 If you know anyone or feel that you are being forced into a marriage against your free will please contact the Family Department on 0116 2554855 who will be able to assist you further.

7 June 2011

Should the identity of experts within family proceedings be disclosed to the public?

The recent case of XYZ v A Local Authority [2011] EWHC 1157 has highlighted the issue of whether the names of expert witnesses and their reports should be ‘routinely disclosed’ in family proceedings, as suggested by Sir Nicholas Wall, President of the Family Division.

The case in question concerned three children who were the subject of care proceedings instigated by a local Council.  The local authority attempted to advance the case based on factitious or induced illness, relying on a report of a paediatrician, Dr M.  During the course of the proceedings, the trial judge heavily criticised Dr M, even though he was not asked to give evidence in person during the court proceedings.  At the conclusion of the hearing, the Judge gave permission to the local authority to withdraw the proceedings and also ordered them to pay £100,000 towards the costs of the parents, who were publicly funded.

Following the hearing, a freelance journalist made an application to identify Dr M, which was also supported by the children’s mother.  Dr M neither supported nor opposed the application to reveal his identity.

Sir Nicholas Wall stated that there were two arguments against the disclosure of the Doctor’s identity: -

a)      The trial judge had retained Dr M’s identity in part as he had not heard the Doctor give evidence in person; and

b)      The anonymity of the expert is necessary to protect them from vilification, and to encourage the expert to undertake expect witness work.

However, after considering all arguments, Sir Nicholas Wall reached the conclusion that Dr M’s identity should be disclosed as there was a need for the Family Justice System to be as transparent as possible and that a debate on the quality and content of expert evidence was important.  Sir Nicholas Wall stated that "I would therefore like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed."

What effect will this have on experts willing to take part in court proceedings?

The disclosure of experts and their reports may well make experts wary and be concerned about undertaking child protection work; either from over-diagnosing child abuse or missing it.  This may result in possible complaints against the expert which may result in continued reluctance to take part in court proceedings.  The disclosure may also affect the risk of possible child abuse not being reported by doctors, whereas anonymity would encourage doctors to give evidence.

However, should an expert be heavily criticised and not called upon to give evidence, as in the case of XYZ v A Local Authority, then they should at least be given the opportunity to respond to the criticisms and to protect their reputation, thus resulting in disclosure of the expert report.  As Sir Nicholas Wall stated in his judgement on the matter of disclosure, “if the press is to engage in fair and accurate reporting of court proceedings, it must be just that...no public interest is served by publishing or communicating misinformation”.

There will however be cases where the secrecy of the expert will be important; to protect the anonymity of a child and a possibility that a child would refuse to engage with an expert if the expert were to be identified.

The issue of disclosure of an expert and their report will continue to be debated within the legal sphere.  However it is important to remember that an expert’s evidence could be crucial to the outcome of a case, in the hope that it will provide a positive outcome which will ultimately be in the best interests of the child.

At EmeryJohnson Solicitors, we have exceptionally experienced Child Care Solicitors who are able to provide parents with the support, advice and representation that they need.  Four of our experienced Child Care Solicitors, Emma Mitchell, Oilen Wan, Halina Patecka and Charlotte Liddell are also members of the Children Panel, and therefore also represent the best interests of the child in such cases, through the instructions of their Children’s Guardian. Please do not hesitate to call us on 0116 2554855 to discuss your case further.

 

3 June 2011

If you have watched any criminal dramas or TV shows then you are most likely already too familiar with the following words:

"You do not have to say anything but it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence."

These words are some of the most important words that a suspect at a police station will ever here. But what does it mean?

The first part “You do not have to say anything…” is quite simple. You do not have to answer the questions that are asked of you. The last part is equally, quite straightforward.  “Anything you do say may be given in evidence” simply states that the interview is tape recorded and it can be used as evidence in court.

It is the middle part of the caution that can cause some confusion and is the most important. The relevant section reads that “it may harm your defence if you do not mention when questioned something which you later rely on in Court”. This means that should you fail to mention something in interview that you then tell the court in evidence, then the court may draw what is called an adverse inference. This is best illustrated with an example.

For example, if you were arrested on the suspicion of burglary but you were with your girlfriend at the cinema at the time of the alleged offence. (ie you had an alibi) and you  did not inform the police of this in interview and only mentioned it in court, the court may think you made it up and infer that you are lying. This is because you would have had time to fabricate the alibi between the police interview and the court hearing.

The issue of adverse inferences was tested recently in Hackett [2011] EWCA Crim 380, where the defendant lied to the police stating that he had not driven to a petrol station with the co-defendant. The defendant had been arrested on suspicion of creating a petrol bomb. The defendant lied as by admitting going to the petrol station, which he did but for an innocent reason, he would have admitted to drink driving. He did not wish to be prosecuted for drinking and driving.  The judge directed the jury to draw an adverse inference. However it was held on appeal that the jury should only draw an adverse inference should the jury reject the defendant’s reason for concealing his attendance at the petrol station.

Needless to say, criminal law can be quite complex. If you or anyone else has been arrested or charged, you need to contact emeryjohnson solicitors as soon as possible on 0116 255 4855. Emeryjohnson solicitors offer 24 hour legal advice, just call 0116 255 4855 and select option 2. Our criminal law solicitors can assist you with your police station interview or if you have already been charged, your criminal court case.

 

2 June 2011

Closure of Specialist Domestic Violence Courts

 

The Ministry of Justice is planning to close a number of Courts in an attempt to cut costs. It is understood that more than one in six specialist domestic violence courts around the country will be closed as a result.

 

Specialist domestic violence courts were introduced as recently as 2005 to encourage more victims to come forward and make it easier for them to give evidence.  Specialist domestic violence courts have proved to be very successful in bringing offender’s to justice by supporting and reassuring vulnerable women who may otherwise have felt unable to give evidence.

 

Specialist domestic violence courts have made it easier for victims to give evidence through mechanisms such as segregated areas within the court building to prevent victims coming into contact with offenders and specialist magistrates who are trained in handling the cases sensitively and appropriately.

 

It is a concern that these cuts may result in victims of domestic violence being less forthcoming which in turn may result in fewer offenders being brought to justice, as without the special safety measures that specialist domestic violence courts have many victims may feel that they cannot give evidence.

 

If you are a victim of domestic violence and want to seek help, support and advice please do not hesitate to contact a member of our family department on 0116 2554855. Our family department are experienced in dealing with people who suffer from domestic violence and will be able to provide you with the advice and support you need.

 

 

23 May 2011

Stephen Lawrence Murder Case – Two to face trial in November 2011 

Stephen Lawrence was stabbed to death in 1993 whilst he waited for a bus in Eltham. In 1996 Gary Dobson stood trial after being charged with his Murder although he denied the offence and was later acquitted. On the 18^th May 2011 at the Court of Appeal Lord Chief Justice Lord Judge, Mrs Justice Rafferty and Mr Justice Holroyde ruled that Gary Dobson could be tried for Stephen Lawrence’s murder again after new evidence has come to light. He will be tried again in November 2011 along with his co accused David Norris. Both men were arrested and charged with his Murder on the 8^th September 2010 and have remained in custody since. This story has never been reported before due to legal reasons.

The Court of Appeal ruled that forensic evidence particularly relating to Gary Dobson’s clothing is sufficient and reliable to order a new trial. The new forensic evidence is said to be evidence which has been found on Gary Dobson’s grey bomber jacket and a multi coloured cardigan. The Court of Appeal in making their decision to try Gary Dobson for the same crime again said that the new forensic evidence would "place Mr Dobson in very close proximity indeed to Stephen Lawrence at the time of the attack".

Gary Dobson denies that the new scientific evidence ties him to the Murder and is claiming that the forensic evidence is unreliable and has been contaminated by the mishandling of forensic bags. 

Emery Johnson have Criminal Departments based at both the Leicester and Loughborough office and offer 24 hour police representation as well as representation at the Magistrates and Crown Courts. For 24 hour police station representation please telephone 0116 255 4855.

 

20 May 2011

The criteria for the DMU Family Law award

The prize is awarded to the student who obtains the best mark in the Family Law option on the LLB.  The option is currently offered to 2nd and 3rd years but from next academic year will be a second year only option.

 

19 May 2011

New Family Fee Schemes introduced by the Legal Services Commission on 9^th May 2011- Legal Aid transformed!

A Consultation paper in respect of changes to Public Funding was published by the Ministry of Justice and the Legal Services Commission in October 2009. The consultation paper detailed drastic changes to Legal Aid which incorporates a new fixed fee system rather than working under hourly rates. Public law cases already operate under a fixed fee system however this is a first for Private law cases.

Legal Help Scheme

Phase 1- changes to controlled work under the Legal Help Scheme was implemented late last year. Level 1 remains as Legal Help however Level 2 is now ‘Family help (Lower). The main change is that a second meeting with the client is no longer required to move onto Level 2 funding. There still needs to be a ‘significant family dispute’ including ‘substantial negotiations with a third party’.

Public funding

Phase 2 was due to be implemented on 14^th October 2010 however the Legal Services Commission confirmed that the fixed fee scheme was to be introduced on 9^th May 2011.

What does this mean? 

The Legal Services Commission have introduced two new family fee schemes.

1)      ‘Family Advocacy Scheme’ –Solicitor advocates and barristers can only now claim a single graduated fixed fee for advocacy work done on both private and public law cases. The fees will vary depending on which court the hearing is listed and all advocates must take with them an ‘advocates attendance form’ to be signed by the Judge/Magistrate at every hearing listed for more than one hour. The fixed fee is based on ‘hearing units’ and the ‘unit’ time runs from the time the hearing has been listed to start.

2)      ‘Private Family Law Representation Scheme’- solicitors can only claim a standard fixed fee for work undertaken on Children, Finance and Domestic Abuse cases  from issue of proceedings to the conclusion of a final hearing. The scheme introduces a Level 3 (Family Help (Higher)) and Level 4 (Legal Representation) fee.

Excluded from the scheme are the following:-

• Child abduction              
• TOLATA
• Nullity
• Defended divorces
• Forced Marriages
• Wardship
• Inherent Jurisdiction
• Parental Orders (Human Fertilisation and Embryology Act 2008)
• Inheritance (Provision for Family and Dependants) Act 1975
• Separate Representation of Children

 

The effect on solicitors....?

The fixed fee scheme will apply to new applications, i.e. from 9^th May 2011 onwards. All work prior to 9^th May 2011 will still be paid under the old system.

Solicitors should be encouraged to undertake their own advocacy to ensure that the clients are getting the best service possible. It is important for clients, especially vulnerable clients, to have continuity in their representation to help ease the stresses and strains of what sometimes can be very acrimonious proceedings.

The times detailed on your orders will now need to take into account time for negotiations before proceeding into court and also time for drafting orders. The time the hearing concludes will need to be detailed on the attendance form therefore solicitors will need to obtain the courts agreement in respect of the time that the hearing concludes, i.e. if it is when the order has been drafted or when it has been approved by the Judge/Magistrate. Solicitors will need to be mindful not to attend court earlier than the time stipulated on the order as this would not be covered under the fixed fee.

The effect on clients.....?

Your solicitor will explain the concept of Legal Aid with you at the first meeting. With the implementation of these fixed fees, mediation and other forms of dispute resolution will be strongly advised by your solicitor and favoured by the court. There is an argument that the quality of service offered by solicitors will not meet your needs. Be reassured that at emeryjohnson we have a Care and Family department who are committed to providing a quality service which meets your individual needs. Should you require any assistance with your family matters, please contact the Care or Family department on 0116 2554855.

18 May 2011

Mediation benefits Divorce

With Family Law firms still coming to grips with the recent reform changes that came into force on 6 April 2011 the Justice Minister, Jonathan Djanogly already feels they are having a large impact.

At a recent meeting with mediators in Manchester he commented that separating couples from the region are resolving their disputes more cheaply, quickly and less stressfully following the introduction of new rules.

The new family rules that came into force on the 6^th April 2011 require someone who wishes to contest the terms of their separation to consider mediation before they apply to the Court. One aim of this new step is to cut the cost of unnecessary Court time by settling possible conflicts out of Court.

The Justice Minister, Mr Djanogly was informed at the meeting how the new rules were working in practice and was told that there had already been a rise in people asking about mediation and those going on to use the process.

Jonathan Djanogly went on to add that mediation is quicker, cheaper and a more amicable alternative, particularly where children are concerned, and that the new rules mean everyone has the opportunity to see if mediation could be a better solution than going straight to court.

Research carried out by the Ministry for Justice shows that mediation can cut the costs and time of going to Court to around one quarter, with costs being on average £535 rather than £2823, and completion occurring within 110 days rather than 435 for cases where mediation did not take place.

With the government already cutting down family legal aid and with the intention to cut certain funding completely in the future, mediation is becoming increasingly important. The financial and time benefits are already starting to have an effect. There are also practical benefits to families who attend mediation, those who are able to communicate reduce the ill feeling towards each other and are less acrimonious.  

With the government changes in place we, at emeryjohnson have already taken an active step in promoting mediation within our firm and expanding our services. If you believe that mediation is for you or that you would like some more advice regarding this then please do not hesitate to contact either Joanne Donald or Samena Bibi, our trained mediators, on 0116 2554855.

 

17 May 2011

EmeryJohnson Family Law Prize

Emeryjohnson have strong links with De Montfort University and will again this year be sponsoring the Emeryjohnson Family Law Prize which will be awarded at the University’s prizegiving ceremomy in July.

13 May 2011

When you are with your friends, the topic often shifts to the expenses of life. Anyone with a motor vehicle will know that these mechanical beasts can cost us a substantial amount of money. With road tax, MOT’s, insurance and petrol you often find that you have no cash left over to do anything else.

But recent stories in the press have demonstrated that the Government is considering increasing the powers of police to issue on the spot fines and penalties for those drivers who are driving dangerous. But if you are not a careless driver then you have nothing to fear! The Government only intends to target those drivers who tailgate, undertake or cut-up other vehicles on the road. Those motorists who make what is considered to be a genuine mistake will not be penalised but will be given help to improve their driving.

But don’t panic yet. The measures will not come into effect until 2012 at the earliest.

Many critics however think that the scheme is too simplistic and further more that new drivers should not be taught to pass their driving test but to learn how to drive. Other critics say that new drivers should all learn how to drive on the motor way and should be tested on parts of the motorway as well.

If you have been charged with a road traffic offence then give emeryjohnson solicitors a call and speak to one of our road traffic offence experts. You can have a fixed fee consultation with our expert or have representation while at court.  Call 0116 2554855 for an appointment.

 

10 May 2011

Prisoner's right to Vote

After the government had lost its final appeal against giving prisoners the right to vote following a ruling by the European court of human rights in November 2010, the government was forced by the Council of Europe to put in place and implement legislation that encompasses prisoner's right to vote.

The court said the UK must draw up proposals within six months from April 2011 to end the blanket ban on prisoners voting to introduce legislative proposals to bring the law in line with European Human Rights Convention. The court delivered the ultimatum after upholding its decision last November to award two UK prisoners £4,350 in costs and expenses for their loss of voting rights.

The human rights judges declared that only the blanket ban on prisoners voting is a breach of human rights, leaving the govenment free how to impletment voting rights to prisoners. One suggestion would be that the right to vote would link to the length of a sentence of a prisoner.

The Prime Minister expressed his disappointment with the decision made by the Court, but the danger of not complying with the decision would mean the government would face possible compensation claims which could run into millions in a flood of human rights claims by inmates.

The UK is currently one of several European countries, which automatically remove voting rights from sentenced prisoners, although remand prisoners still have the vote.

Emeryjohnson solicitors deals with all aspects of prison law. If you require advice and/or  assistance, please do not hesitate to contact a member of our criminal team on 0116 2554855. 

 

6 May 2011

Domestic Violence and Injunctions

Are you suffering from domestic violence and wanting to take action to protect yourself and/or your children?

What is domestic violence?

The Law Commission has said that “any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality”.  Inter-marital rape is included in this definition.  Single incidents do constitute domestic violence: there does not need to be a history or string of incidents.

How can the law help?

There are two Orders that a Court can make in respect of domestic violence.  These are known as ‘injunctions’ and can be occupation orders or non-molestation orders.

Occupation Order

This is an order made by the Court that can give you the right to live in your family home whilst removing the person who is committing the domestic abuse.  If you have left your partner because if domestic violence, the Court can order that you be allowed to re-enter the home and that your partner be required to leave, and possibly that they be restricted from entering certain parts of the surrounding area.  It can also make a statement of your rights to the property. 

Occupation Orders are not frequently made by the Court because they involve removing a person with property rights from their home.  More frequently applied are non-molestation orders.

Non-Molestation Order

This is an order that can stop your partner from molesting you.  The Law Commission says that molestation “encompasses any form of serious pestering or harassment and applies to any conduct which could properly be regarded as such a degree of harassment as to call for the intervention of the Court”. 

For both of these orders there are several factors that need to be applied for the Court to decide whether they should be made.

For both orders, you must have a right to apply.  The law requires you to be an “associated person” to apply for either order.  Below are set out the circumstances under which people are “associated” for the purposes of this area of law:

(a)  they are or have been married to each other

(aa) they are or have been civil partners of each other

(b)  they are cohabitants or former cohabitants

(c)  they live or have lived in the same household, otherwise than merely by reason of one of them being the other's employee, tenant, lodger or boarder;

(d)  they are relatives;

(e)  they have agreed to marry one another (whether or not that agreement has been terminated)

(eza) they have entered into a civil partnership agreement (whether or not that agreement has  been terminated)

(ea)  they have or have had an intimate personal relationship with each other which is or was of significant duration;

(f) in relation to any child they are both persons who are parents of that child or they have or have had parental responsibility for that child;

(g) they are parties to the same family proceedings.

For an occupation order, it must be the case that the property from which you wish to remove your partner is or has been intended to be your mutual home.

Secondly, the Court will assess whether you or any child involved are at risk of ‘significant harm’ which is caused by the person you wish to have removed from your home.

 If this is found to be the case, there is then a very important test called the ‘balance of harm’ test, which is applied when the Court are deciding whether or not to make an occupation order.  Of course this is an important decision and they Court will not remove someone from their home unless they are convinced there is good cause to do so.  In deciding this, they Court will look at any harm likely to be caused to you or any relevant child (a child living with you or likely to live with you) if an order is not made, compared to what harm is likely to be caused to your partner and any relevant child if an order  is made. 

Harm means ill-treatment or the impairment of health (and in relation to children impairment of development as well).  The Court has guidance on how to assess this.  The harm must be caused by the person you wish to remove and them alone.

If the result of the balance of harm test is not clear, the Court will look at issues such as the housing and financial needs, as well as conduct, of both parties.  They will also consider the likely impact that not making an order will have on both parties.

There is a difference between what are known as ‘entitled’ applicants and ‘non-entitled’ applicants, with regard to how the law is applied.  Your solicitor will go through this with you and establish whether or not you are ‘entitled’ to have an occupation order.  This relates to rights with regard to the property and again the significance of removing someone who is entitled to live there from their home.

If you have enough property rights you are entitled and therefore if an order is made in your favour it can be for an indefinite period or for a set period.  In these cases, if the balance of harm test is met the Court must make an order in your favour.

If you do not have sufficient property rights, more details of the relationship will be needed by the Court to make a decision, and the maximum period an order can be made for is 6 months, with a further 6 months being available on application to the Court (so an absolute maximum of 12 months).  In these cases, if the balance of harm test is met the Court have a discretion (i.e. a choice) as to whether an order should be made.

The Court may if it sees fit attach a power of arrest to the order, so that if the order is breached the respondent may be arrested.  This power may be attached to the order as a whole or only to certain provisions of the order, e.g. an exclusion zone provision. 

Non-Molestation Orders

The Court is more likely to issue a non-molestation order than an occupation order.  This is because it does not remove as many rights from the other person.

Such an order can prevent a person from molesting you at all or from using particular forms of molestation (e.g. telephone calls, turning up at your property or workplace etc).  It can be made for a specified period or until further notice.

To justify making an order, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the applicant (who must be an associated person as discussed above) or any relevant child.

Breach of a non-molestation order is a criminal offence which can lead to fine and/or up to 5 years in prison.

Emergencies

Emergency applications can be made for both of these injunctions.  If you are entitled to Legal Help we can arrange for something called Devolved Powers to be brought into effect.  This is where we can start proceedings before we obtain funding from the Legal Services Commission, and they provide funding retrospectively.

In certain circumstances both these order can be made ex parte.  This means that they are made without notifying the respondent.  This happens only when the Court sees it as fair to do so, and after considering the a risk of harm to you or a relevant child, the chances of you being prevented from making an application through the normal route, and the possibility that the respondent is deliberately evading being served with the order.

If you have concerns about domestic violence or injunctions then do not hesitate to contact a member of our family department on 0116 255 4855.

 

5 May 2011

Unmarried couples and their homes

An important Court case is currently being decided which could ultimately have a dramatic effect on the property rights of couples who are not married.

The case involves Patricia Jones and her ex-partner Leonard Kernott.  Miss Jones is challenging a Court of Appeal decision, as that decision gave Mr Kernott an equal share in the home they owned. The facts are that they purchased a bungalow in Essex together and it was placed in their names jointly, but after separating some 5 years later Miss Jones continued to pay the mortgage for the next 13 years with no assistance from Mr Kernott. In addition to this Miss Jones had to raise two children from the relationship with no child maintenance being paid to her from Mr Kernott.

As a result Miss Jones has taken the matter to the Supreme Court to get the final decision, a decision that many solicitors say could set an important precedent.

Statistics show that there are more than two million co-habiting, unmarried couples in England and Wales which just does to show how this much of an impact this decision could have.

The decision is not due to be published for several weeks but many solicitors through England have remarked that this is an opportunity for the Courts to “even up” the rights between unmarried couples and divorcing couples.  Many couples believe in the concept of a common-law marriage, but don’t realise that it is a myth and that they don’t get as much protection. A court initially ruled that Mr Kernott would receive 10% of the property and Miss Jones 90% but the Court of Appeal overruled this decision by stating that the two should receive 50-50 because the property was jointly owned.

Many family law solicitors say that if the couple had been married, then a divorce court would be able to override those proprietary interests in order to achieve what is fair. However for unmarried couples the court have to apply strict legal principles, which means that unmarried couples would have to split jointly owned properties 50-50.

The importance of this judgement can not be overemphasised, but none the less if you are seeking to make a huge financial decision such as purchasing property with your partner; it would be prudent to seek legal advice from a Leicester family law solicitor. Emeryjohnson solicitors offer fixed fee consultations where you can receive legal advice on your legal concern from one of our senior and experienced solicitors. For more information on fixed fee consultations, contact our office in Leicester on 0116 255 4855.

 

4 May 2011

Legal Representation at the Police Station

A recent case at the High Court of Justice has passed a judgement against the Crown Prosecution Service stating that the police had breached various aspects of Police and Criminal Evidence Act 1984 when interviewing a particular defendant.

The defendant had been found in the early hours of the morning slumped over the wheel of his car. He was arrested for being in charge of a motor vehicle whilst under the influence of drink or drugs. The defendant completed a breath test and it was on the basis of the results from this test that the police made the decision to charge the defendant. However, at this point the defendant was then interviewed. The justices stated that this was a breach of the Police and Criminal Evidence Act 1984.

A close look at Codes of Practice C, 16.5 it states that “a detainee may not be interviewed about an offence after they have been charged with, or informed that they may be prosecuted for it, unless the interview is necessary”. The justices deemed that based on the circumstances, the interview was not necessary at all.  Further to this the caution was not properly administered.

This case is yet another example of the importance of legal representation at the police station. Regardless of whether you are charged at the police station or told that it is a ‘simple matter’, always make sure that you get your right to legal advice. If you know someone who is dealing with a criminal matter or feel as you may need assistance in the future then please contact our office on 0116 255 4855.

 

3 May 2011

Forced Marriage

If you are trapped in a union that you did not truly consent to, then you do have some recourse in English Law. In November 2008, legislation was introduced in England and Wales that provide those stuck in an unwanted union, a way out.

If an individual believed that they will be forced to marry another individual then they, their family member or even their friend can ask the Court to implement what is called a Forced Marriage Protection Order (FMPO). This order will not only stop a forced marriage from taking place but will also stop the victim from being taken abroad in order for a forced marriage to occur. But the legislation itself does not ban a forced marriage and so in essence, it is not a criminal act in itself. The legislation is civil, meaning that the Forced Marriage Act uses civil solutions to avoid criminalising those members of their family. However, should a Forced Marriage Protection Order be contravened then the perpetrator could face up to two years imprisonment.

There are various arguments for the criminalisation of forced marriages. Many believe that it would act as an effective deterrent and establish a rather powerful message that coercing people to marry is wrong. However, the other side believes that by criminalising forced marriages you actually dissuade the victims from coming forward, on the basis that the urge to not criminalise is so strong. Lord Lester is one such supporter. He believes that the family law approach of dealing with forced marriages is far more effective than the criminal process, as he believes that the criminal process “has not proved to be an effective way of tackling a major social problem.”

If you have concerns about a marriage or soon to occur marriage then do not hesitate to contact a member of our family department on 0116 255 4855.

 

26 April 2011

EXPERT EVIDENCE PUT TO THE TEST!

  The Law Commission has suggested that a new pre-trial reliability test should be used in criminal cases to decide whether or not the evidence of an expert should be admitted.

 Currently there is no clear test applied by a Judge to decide whether expert evidence is reliable enough to be shown to the Jury. The reliability test would give Judge’s the power to disallow evidence from a trial if it cannot be shown to be trustworthy and reliable. It was suggested that in applying the reliability test the Judge should look at whether the strength of the experts opinion is warranted and whether it is ‘soundly based’. This would mean that a Judge could exclude evidence if it was based on an assumption that couldn’t be justified or included ‘flawed data’.

This suggestion has come about because the unreliability of expert evidence can contribute to miscarriages of justice and wrongful convictions. It is thought that if a Judge applied this test it would help reduce this risk, as if a Judge was to decide that evidence was unreliable and therefore should not be admitted this would mean that the Jury would not have the opportunity to consider it during the trial.

Professor David Ormerod, the Law Commissioner for England and Wales, said: "Juries today expect expert evidence to be presented in criminal trials and expect it to be clear and capable of being relied on in confidence.” As expert evidence is given a lot of weight by the Jury it is important that what is presented to them is reliable and applying this test would ensure that this is the case.

If you require advice, assistance or representation at Court in relation to a criminal matter then please contact a member of our criminal department on 0116 2554855.

 

12 April 2011

Has s.31 Children Act 1989 threshold been crossed where it could not be shown that a child’s injuries had been caused by his parents?

 

In the recent case of Re A (A Child) [2011] EWHC 517 (Fam) before Mr Justice Headley, consideration was given to whether injuries sustained by baby ‘A’ had been caused by his parents, and therefore whether the threshold criteria had been met.

 In order for the Court to decide whether an Interim Care Order is necessary, the Local Authority must place before the Court enough evidence to show that the threshold criteria for an Interim Care Order has been passed.  Threshold is a reasonable belief the child is or would be a risk of significant harm.  A Care Order is made by the court (under Section 31(1)(a) of the Children Act), placing the child in the care of a designated Local Authority, with parental responsibility being shared between the parents and the local authority. It may only be made if the court is satisfied that:

 (a)   the child concerned is suffering, or is likely to suffer, significant harm; and

 (b)   the harm or likelihood of harm is attributable to either:

                   (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give him; or

                  (ii) the child being beyond parental control.

 The relevant date for threshold is when the Local Authority take protective measures, either when a parent consents for a child to be placed in foster care voluntarily under section 20 or the day that the Local Authority issue care proceedings in court.

 In the case of Re A, care proceedings were initiated as a result of a scan which showed the baby to have sustained rib fractures including bilateral acromial fractures, for which A's parents had no explanation.  Paediatric evidence, which was ultimately accepted by all parties, concluded that the fractures were caused by an episode of squeezing of the chest.  However since birth, baby A had suffered from a very severe neurodevelopmental and neuromuscular disorder resulting in complex and demanding care needs.  As a result of this, baby A was often very irritable and hugely difficult to handle and therefore the expert also concluded that any pain or discomfort of the fracture may have been masked by his general irritability.  The expert also concluded that baby A’s injuries could have been caused by medical staff at the hospital where A was an in-patient.

 The issue which concerned the court was whether the threshold criteria had not been met or whether the court should conclude under s.1(5) CA 1989 that no order should be made.  The Local Authority however accepted that on the evidence available it would not be possible to prove that the fractures had been caused by the parents.  The parents legal representatives therefore submitted that the parents should be expressly exonerated from responsibility for causing the injuries, and that the threshold had thereby not been crossed.

 However, in his Judgement, Mr Justice Headley stated that “it is simply not justifiable on the evidence to exclude the possibility that these parents (or either of them) caused these injuries”, therefore could not exclude the possibility that they were.

 The Judge therefore concluded that the threshold had been met but that no order should be made on the application for a care order because “nothing could be proved against the parents...whatever may have happened in this case, these parents have never inflicted deliberate harm on this child. It is also in point to remember...that, no findings having been made...these parents do not present a risk to this child based on anything that may have happened in the past”.

 Care proceedings can be a very harrowing experience for parents, particularly in instances where it is the possibility that the parent did not cause the injuries to the child.  At EmeryJohnson Solicitors, we have exceptionally experienced Child Care Solicitors who are able to provide parents with the support, advice and representation that they need in such harrowing circumstances.  Please do not hesitate to call us on 0116 2554855.

 

11 March 2011

Court of Appeal “aghast” at the decision to remove three children after a 15 minute hearing.

A Court of Appeal Judge, Lord Justice Thorpe has recently expressed his concern about a decision made by Judge James Orrell in a care proceedings case held in Derby County Court.

Judge Orrell made the decision to remove three children from the care of their parents after one of the children was found to have bruising to the ear. Doctors attended court to give evidence and it was their opinion that the bruising may have been caused by pinching.

Judge Orrell made the decision that the children should be removed from the care of their parents based on the evidence of the Doctors alone. Judge Orrell failed to hear evidence from either of the parents in the case or the child with the bruised ear who was said to be old enough and mature enough to give an explanation for the bruising himself.

Judge Lord Justice Thorpe overturned Judge Orrell’s decision and said he was “completely aghast” at how the case had been handled, he said that “there is nothing more serious than a removal hearing because the parents are so prejudiced in the proceedings thereafter”.

Once the decision was over turned Judge Lord Justice Thorpe returned the case to Derby County Court but expressed that any further judicial handling of the case should be dealt with by another Judge.

The child care department here at emeryjohnson can give advice and representation to parents where social services are involved with their families whether this is at child protection case conferences or within court proceedings. All of the Solicitors within the Care Department are experienced in dealing with a variety of child care cases including cases where children have presented with injuries and it is the view of the social services that the injuries may have been caused non accidentally by a parent of family member.

If you have a problem with social services and would like some advice then please telephone a member of the Care Department on 0116 255 4855.

 

08 March 2011

Applying for Private Orders under Section 8 of the 1989 Act – Leave to Apply

There are certain people who have an automatic leave to apply to the Courts for Private (that is, those cases not involving Local Authorities) Orders.  These include Residence or Contact Orders, and for these two kinds of Order there are also certain people who can obtain leave to apply to the Court.  Not everyone can apply, as there would be a risk of the child in question’s family and social life being disrupted if anybody and everybody could apply for such orders.

The piece of legislation that sets out who has leave to apply and who can be granted that leave by the Court is The Children Act 1989.  Two sections of this legislation apply, s10(4) and s10(5).  These sections have been amended over time to include people who didn’t previously have the right to apply, for example grandparents and other relatives in certain circumstances (see (g) below).

S10(4) says that the people who have an automatic entitlement to apply to the Court for any private order are firstly

1. parents, guardians or special  guardians with parental responsibility
2. any person who has a residence order in force in relation to the child in question

 Parental responsibility is automatic for the mother of the child. 

Fathers who are married to the mother of the child at the time of birth (or are married at the time the couple adopts a child), also have automatic parental responsibility, even if the marriage does not last. 

Unmarried fathers whose names are on the birth certificate of a child born after December 2003, as long as they jointly registered the birth of the child, also have automatic parental responsibility. 

Fathers and other relatives can apply to the Court for a Parental Responsibility Order.  In making its decision the Court will consider amongst other things

 

1. the degree of commitment shown by the applicant to the child
2. the degree of attachment between the applicant and child
3. the applicant's reasons for applying for the order

The decision will ultimately depend on what the Court feels is in the child’s best interests.  If necessary they will also take evidence from Social Services and/or the Police to decide this.

The Court has little patience with anyone they feel is seeking merely to stir up conflict.

Other relatives may not apply directly for a Parental Responsibility Order but will, if they have a Residence, Special Guardianship or Adoption Order made in their favour, gain it as an automatic ‘side-effect’ or such an Order.  Once granted, parental responsibility is not discharged unless the Court makes a specific Order to do so.

S10(5) says that people who are entitled to apply for Residence or Contact Orders only are

 

1. any party to a marriage or civil partnership (whether or not the marriage is continuing) where the child in question is treated as a child of the family;
2. Anyone the child has lived with for at least 3 years (this need not be continuous but must not be across a period of more than 5 years; the child need not be living with the applicant immediately before the application is made, but must have been doing so until a maximum of 3 months prior to application);
3. Anyone who has consent to their application from all of the following: parents, guardian and if appropriate a person with a residence order in relation to the child granted to them ;
4. Anyone who has the consent of all those with parental responsibility for the child;
5. Where the child is in local authority care, anyone who has consent of the local authority.
6. A local authority foster parent is entitled to apply for a residence order with respect to a child if the child has lived with them for a period of at least one year immediately before the application.
7. A relative of a child is entitled to apply for a residence order with respect to the child if the child has lived with the relative for a period of at least one year immediately before the application.

 

28 February 2011

The Ministry of Justice have been running a year long pilot scheme which essentially equated to a virtual court. The scheme was intended to save money but many commentators disagree that has been achieved.

The ‘virtual court’ consisted of defendants remaining in police stations, appearing via video link rather than being physically present at in the court room. The scheme was piloted between May 2009 to May 2010 but there is widespread resistance to the scheme being rolled out nationwide.

The Ministry of Justice evaluation did illustrate that the pilot was successful in reducing time and cost associated with transporting defendants to and from the police station and the courts but due the high cost of the technology used, the scheme was still running at a loss.

The Law Society are one of the many organisation opposing the scheme being implemented remaking that it would be “wholly irresponsible for the government to roll out and expensive and inefficient process when justice and the rule of law is at stake. There are clearly operational as well as financial flaws to virtual courts that point towards an obvious conclusion: they do not work. The idea of virtual courts was to speed up the process and save money. The pilot shows it has failed on both counts.”

The government responded to criticism by saying that they were “committed to reforming the Courts Service to deliver a modern, efficient justice system. Greater use of video technology will play an important part in that work. The purpose of the virtual courts pilot was to test whether the process could work and whether it was worth further development. The evaluation has shown this to be case.”

A decision as to whether the scheme will be implemented has yet to be reached.

We have criminal law solicitors in Leicester that have numerous years of experience in the Magistrates and Crown Courts. In addition to this our family law solicitor in Leicester can also assist you with your legal issue. If you are looking for a solicitor to represent you in court for a criminal or family law matter, please feel free to contact our office on 0116 255 4855.

25 February 2011

 

Sex Offenders Register

Following the recent ruling in the Supreme Court, England's highest court, criminals who are on the sex offenders register indefinately have the right to remove their name if they can prove that they have reformed and no longer pose a risk to the public. 

The ruling by the Supreme Court was based on the fact that by not providing an opportunity for sex offenders to appeal their indefinate registration on the sex offenders register, would be a breach of their right to private and family life.

A sex offender who has been imprisoned for thirty months or more are placed on the register indefinately i.e. life.

In response to this ruling the Home Office has announced that tighter restrictions will be placed to ensure the safety of the public and to make minimum possible changes in order to comply with the Supreme Court ruling. 

The Home Office plans to put in place a robust review that is led by the police and all relevant agencies. This will provide a more accurate assessment whether a sex offender does pose a risk to the public.

Offenders will only be able to apply for consideration of removal of their name off the register, after waiting fifthteen years following release from custody. There will be no automatic appeals and there will be no right to appeal if the decision is made to keep the offender on the register. This final decision will be decided by the police. 

Additionally, the Home Office intends to make the following changes in order to tighten the current law in this area.

Firstly, it will be compulsory for sex offenders to report to the authorities before travelling abroad, even for one day. Currently, offenders are free to travel up to three days.

Secondly, offenders will have to notify the authorities whenever they are living in a household with a person under the age of 18, and notify the authorities weekly as to where they can be found when they have no fixed address.

Finally, rules will be made more stringent in order to prevent sex offenders avoiding being on the register when they change their name by deed poll. 

(For more information please go to/ For more updates and information regarding the government's plans please go to http://www.homeoffice.gov.uk/publications/parliamentary-business/oral-statements/sex-offender-statement/)

21 February 2011

Expert's Opinions on the New Practice Direction in Relation to Child Care Cases

Following on from the article written on 31^st  January 2011,  there have been a number of responses from experts stating that they just cannot comply with the new timescale requirements in place in relation to care proceedings.

As previously mentioned, a new Midlands Circuit Practice Direction has recently been submitted in respect of the delay caused to child care proceedings when a case is held in a waiting list before experts can begin their work.

In care proceedings the welfare of the child is of paramount importance and the Court must never lose sight of what is in the child's best interests. In considering what is in the child's best interests the Court must take into account the no delay principle. This states that delay in court proceedings can prejudice a child's welfare and everyone involved in the proceedings has a duty to minimise delay. It is recognised that it is often inevitable that some delay will occur as a result of the court timetable, but this must be kept to a minimum.

Many experts have stated that they are currently stretched to the limit, and often have to turn down work in cases as they simply cannot comply with the timescales set out. Therefore they are unlikely to be able to abide by the suggested timescale of filing a report 3 months after they have been given permission by the Courts to carry out work in a case.

The new Practice Direction poses a dilemma as it narrows the pool of potential experts even further than is already the case. With the increase in child care proceedings and an already narrow selection of experts it could result in cases having to proceed without the much needed opinion of an expert.

If you need expert advise in care proceedings please do not hesitate to contact a member of our Care team, who will be able to provide you with the advice, support and representation you may need.

 

 

14 February 2011

The government wish to demonstrate a commitment to Alternative Dispute Resolution (ADR), and Legal Aid Minister, Jonathan Djanogly believes that £150 legal aid should be given to those family law solicitors who engage in mediation.

This announcement took place at the National Family Mediation Conference, where Djanogly was speaking.  It was stated that any individual who was entitled to legal aid and whom enters into mediation will be entitled to £150 in legal help. This would assist those solicitors conducting the mediation process to provide legal advice and to also formalise the agreement reached between the two parties.

The payment of the fee to family law solicitors is not dependent on the success of the mediation.

There are currently proposals on legal aid that would see all private law family proceedings removed from legal aid, unless there is an aspect of domestic violence, forced marriage or child abduction. 

These same proposals are said to represent the government’s commitment to ADR which is an alternative to “long drawn out legal battles that can be painful and expensive”.

Djanogly remarked that “in the future, as a rule, we do not propose that the taxpayer should be funding routine divorce or ancillary relief cases, or disputes about the arrangements for children.”

However, not everyone is so keen on the government’s proposals, as illustrated by David Emmerson, chair of Resolution’s legal aid committee. He claims that the government is ‘rushing ahead’ by supporting mediation as the only solution for family problems.

“We believe that each family needs a process that is right for them – that can be mediation, but might also be collaborative law, parent information and in some cases, court.”

If you do have family law concerns, please do not hesitate to contact our office on 0116 255 4855. We may be able to assist you in a variety of family law areas, with some of the most experience family law solicitor in Leicester.  We have collaborative law solicitors in Leicester and family law solicitors trained in mediation who can assist you with your legal issue.

 

 

 

31 January 2011

Expert Witness Delays in Court Proceedings

The Honourable Mr Justice McFarlane, the Family Division Liaison Judge for the East-Midlands has submitted a new Midlands Circuit Practice Direction in respect of the “unacceptable delay...caused to children in litigation when instructions are held in a waiting list for months before the expert is able to begin work”.

As a result of the delay, the practice direction states that “leave will not be given by the family courts (of the Midlands Region) for the instruction of psychologists and independent social workers if they are unable to report within 3 months of the grant of leave...from 01/05/11 our courts will not permit the instruction of experts unable to report within 3 months.”

However, “it is recognised that very exceptionally the essential instruction of an expert of international reputation may be impossible within these provisions” therefore with permission of the Judge in an individual case their instruction will be permitted.

What impact will this have on a case in court proceedings? 

Although a delay in Children Act proceedings is certainly not acceptable, the three month limit ultimately means that the number of experts who are able to be instructed will be limited, as many experts are not able to file within a three month period due to long waiting lists.  It may also have an affect on final hearings as expert reports may not be available to assist in the important decision of a child’s future.

The purpose of Care and Contact proceedings is that the Court must consider what is in the best interests of the child, and/or in Care proceedings whether the child can remain in their parents’ or other family members care. 

In Care proceedings, an expert assessment may be required to determine if there is the possibility of any psychiatric or psychological problems with a parent, or an expert to determine a child’s injuries.  It can be this evidence which is crucial to a case, therefore the Practice Direction may have an impact on the assessments that are or are not placed before the court when deciding on a child’s future.

In Family proceedings, where domestic violence or sexual abuse occurs, it may be necessary for expert psychiatric or psychological assessments to be carried out.  The Practice Direction may also therefore have an impact on the Parents’ right to a fair trial if the expert reports are not available in time for the hearings. 

Should you need expert advise in Care or Family Proceedings, please do not hesitate to contact our dedicated team at emeryjohnson, who will be able to provide you with the advice, support and representation you may need.

 

 

24 January 2011

‘New additions to the emeryjohnson team!’

emeryjohnson are pleased to announce new additions to our team!

Oliver Horsepool joins the Family department as a Legal Clerk and will be assisting Emma Mitchell, partner and Joanne Donald, senior solicitor in the Family department. Fong Ma joins the Crime department as a Legal Clerk following work experience in the summer. Fong assists various members of the Crime team in all criminal matters.

Please contact Oliver or Fong in order to discuss the services we offer in each department and/or to arrange an appointment.

17 January 2011

 

Crime Mapping website goes live!

A new criminal mapping website costing £300,000 went live on 1^st February 2011; the site allows you to see the types of and how many offences where commited in your street simply by entering your street name, town or postcode. 

The website uses six categories to break down the information - burglary, robbery, vehicle crime, violence, other crime and anti-social behaviour. Sex crimes have been included in the "other" category, along with crimes such as theft and shoplifting.

The website also contains other useful information such as appeals made by the police and news on recent convictions and was described as "a magnificent achievement" by the Association of Police Authorities

According to the maps, streets in Preston, Swansea and the Lakeside Shopping Centre in Essex, are amongst the worst crime-ridden places in England and Wales, each reporting over a 100 crimes in December alone.

The website also shows a Surrey Street in Portsmouth, as having 136 crimes, including burglary, violence and anti-social behaviour in December.

Visit the website at www.police.uk

10 January 2011

New Year.... New Start.

Solicitor Michelle Harding, based in our established family department appeared on BBC Radio Leicester’s morning show on Monday 3^rd January 2011 to discuss the increase of divorce rates in the New Year.

A New Year, new beginnings, fresh goals and new resolutions. The new year is all about fresh starts, with people hoping to turn their lives around; this may be by getting fit, giving up cigarettes or getting a new job as part of their new years resolution.

Statistics show that divorce rates increase in the New Year. January is known as "Divorce Month" among lawyers as couples file for divorce in the first month of the year more than they do any other time of year.

Couples often decide to delay proceedings and put on a brave face for the sake of the children over the festive period, but the pressures of spending long periods with the family and working hard to juggle the high expectations of Christmas can often be the final straw.

Divorce is sadly often unavoidable and can have a huge impact on the entire family so it is important that issues are resolved quickly and sensitively. For many separation is a last resort, when all other methods of reconciliation have failed, so couples want their legal affairs in order and papers finalised as soon as possible so they can start to move on.

For advice on divorce, matrimonial finances or the children please contact 0116 2554855 and speak with a member of staff in the family department. 

 

13 December 2010

‘Men suffer too...Domestic Abuse- A Universal Issue’

There is often a misconception that only women suffer domestic abuse. It is not ok for a man to abuse a woman but is it ok for a woman to abuse a man? What about same sex couples? The answer is universal- it is not acceptable in any circumstances. Domestic abuse is not only physical and verbal but emotional, financial and sexual. ANYONE can suffer domestic abuse.

Men in particular can often feel ashamed and embarrassed and simply not accept that they are suffering domestic abuse, recent figures show that the percentage of men likely to report domestic abuse incidents is less than women. However male domestic abuse is more common than people think. Trisha Parmar, a clerk in our family department recently attended a domestic violence event at which awareness was raised about the issue of male domestic abuse.

The family department at emeryjohnson include clerks and solicitors who specialise in domestic abuse and can offer advice and representation in such cases. emeryjohnson are keen to ensure that all clients feel comfortable and supported through such emotionally draining and traumatic times. We work closely with various domestic violence agencies to ensure that all of our clients, regardless of gender, receive the support they need.

If you require any further information and would like to book a private and confidential appointment with one of the legal representatives in the family department, please call 0116 2554855.

 

06 December 2010

15 years of fun!

Congratulations to Emery Johnson on its 15^th Birthday.  emeryjohnson was founded by Managing Partner Helen Johnson and Leslie Emery in 1995, with only one member of staff to assist.  The firm has over the last 15 years welcomed Emma Mitchell as partner and grown to become one of Leicester’s leading Law firms employing 35 members of staff.

Being at the forefront of Leicester’s Legal Industry means that emeryjohnson continues to evolve and change with the times. emeryjohnson continues to look forward in the current economic climate and continues to prioritise clients needs above all else.

emeryjohnson specialises in care, family and crime and employs lawyers in those areas who share the emeryjohnson ethos of client care and hard work which is summed up by the emeryjohnson mission statement. This reads that emeryjohnson strives to provide specialist advice of the highest standard to clients seeking assistance in our areas of law.

To have an emeryjohnson lawyer working on your case call us on 0116 2554855.

20 December 2010

Police Station Representatives

EmeryJohnson Solicitors are very proud to announce that three more of our employees have now passed the police station accreditation scheme! 

Teena Gill-Grewal, Sarah Greaves and Trisha Parmar are now fully accredited to represent clients at the police station.  This now brings the total number of police station accredited representatives at emeryjohnson to ten!  EmeryJohnson are proud to be able to continue to invest in our employees so that we are able to provide you with the best possible service. 

Should you require representation at the police station, please do not hesitate to call us on 0116 2554855.  Please note that we also have an emergency out of hour’s line, accessed by the same number so that we are always on hand to advise and represent you at the police station 24 hours a day, 7 days a week.

22 November 2010

Beware Solicitors on prison visits.

Following a change in the storage procedure of personal possessions, mobile telephones and dictation machines at HMP Brixton, 5 defence solicitors were arrested and detained after they mistakenly stored memory sticks and recording devices in the incorrect locker whilst storing their belongings prior to visiting clients.

Prison staff telephoned the police after finding the memory sticks and recording devices in the lockers during a routine search.

Three out of the five solicitors arrested are now taking legal action against both the Prison Service and the Police for unlawful detention and interference with confidential material. A spokesman from the Metropolitan Police Service has said that they are currently responding to the legal action brought by the defence solicitors.

The prison service have confirmed that it is a criminal offence to possess, without authorisation a mobile telephone or any other device capable of transmitting or receiving images, sounds or information whilst inside a prison.

They have also warned that if mobile telephones or any other recording devices are found within prisons they will be confiscated and the person – whether a solicitor or not will be detained whilst the Police are contacted.

 

15 November 2010

CAFCASS

 

 A recent report published by the Public Accounts Committee has heavily criticised the Children and Family Court Advisory and Support Service (CAFCASS).

CAFCASS is an independent body that is separate from social services and the Court. It focuses on the best interests of children involved in family proceedings and provides advice to the Court through a Children's Guardian who is there safeguard and promote the welfare of the children.

The report states that CAFCASS has been unable to cope with the dramatic rise in its caseload that has occurred following the death of baby Peter Connelly in 2007. The death of baby Peter resulted in public outcry which created panic amongst Local Authorities and subsequently led to them issuing more Public Law applications in an attempt to remove children they considered to be at risk. As a direct result of this growth in applications it is estimated that CAFCASS had a 34% increase in its caseload during 2009/10.

It was recognised that CAFCASS was underfunded even before this 34% increase in caseload, and therefore it is not surprising that it has been under great strain since the death of baby Peter, as it has not been given an increase in funding and resources in order to cope with the growing workload.

The chief executive of CAFCASS has said that it has managed to improve on staff sickness, and has raised standards to allow court reports to be filed faster and new cases to be allocated quicker, however it would seem that more needs to be done in order to provide CAFCASS with the resources and funding it needs to meet expectations.

At emeryjohnson solicitors the Care Department can give you advice, support and assistance if social services are involved with your family.

Partner Emma Mitchell, Associate Solicitor Oilen Wan, Senior Solicitor Halina Patecka and Solicitor Charlotte Liddell are all experienced members of the Children's Panel. This means that as well as representing parents in care proceedings they can also represent children through their CAFCASS Children's Guardian.

 

 

 

8 November 2010

Parental Child Abduction

 Has your child been abducted by the other parent, or are you in fear of your child being abducted?  Parental Child Abduction can comprise three different forms: -

•  Abduction – where a child has been taken to another country without the other parent’s consent;
• Wrongful Retention – where a child has been kept in another country by the parent following an overseas trip;
• Threat of abduction – where a parent feels that their child is at risk of being abducted by the other parent to another country

 There is an agreement between a number of countries which aims to ensure that a child is returned to the country he/she normally lives in following an abduction.  These countries form part of The Hague Convention Countries.  If your child is therefore abducted to or wrongfully retained from one of The Hague Convention countries, we will be able to assist in making an urgent application for the return of your child under The Hague Convention 1980.

 What if your child has been abducted or retained in a country that is not one of The Hague Convention countries?  You would need permission from the country your child has been taken to, to return your child to England.  However EmeryJohnson Solicitors are able to assist you in making an important and urgent application to the court in England for orders that may assist you when making the application for the return of your child in the other country.

 In order to prevent abduction from England, we can assist you by obtaining a specific issue and/or a prohibited steps order to stop the unlawful removal of your child by the other parent.  However it is important to take some immediate steps, therefore please do not hesitate to contact EmeryJohnson Solicitors.  We can also assist in ‘permission to remove’ applications should you as a parent wish to move abroad with your child and the other parent does not consent.

 Teena Gill-Grewal regularly volunteers on the advice lines at Reunite International, the well known Parental Child Abduction Charity, who provide advise, information and support to parents.  We therefore have strong links with Reunite in order to be able to assist you as much as possible during this distressing time.

 Emma Mitchell, Partner and head of the family department at EmeryJohnson Solicitors is experienced in this area of law, and with the assistance of Teena and her experiences at Reunite, will be able to meet with you and provide the advise, support and urgent representation you may need.  You will also be able to find our details on the Reunite lawyers listing.

 Should you need to make an application for the return of your child under The Hague Convention or you are a parent who has been served with an application for the return of your child by the other parent, then you may be eligible for legal aid.  However this would be both a means and merits test.  If you are not eligible for legal aid, then we are able to offer competitive private rates in order to assist you.  This can be discussed at a first £100 fixed fee appointment where we will discuss your case with you and provide you with some initial advice. 

If you are a non-resident parent of England and your child has been abducted into the country, it is a non-means and non-merits test, therefore you will automatically qualify for legal aid.

 Please do not hesitate to contact EmeryJohnson Solicitors to discuss all of your available options on 0116 2554855.

 

 

4 November 2010

‘I’ve been ordered to attend a ‘PIP’S’- what is it?’ 

Any decision made in a UK court in respect of Children Act applications are always made in the best interests of the child or children. Separation within the family unit can often result in high tensions, emotions and can be acrimonious. The courts have recognised that warring parents can sometimes lose focus on the primary issue- the child/children.

An increasing number of parents are being ordered to attend Separated Parents Information Programmes (PIPs) which are wholly supported by CAFCASS. PIPs were introduced by the Children and Adoption Act 2006 (in force 2008) to help parents to deal with and reduce the impact of their separation upon the child/children.

The courts can order that the parents attend a PIPs and attendance at these groups is mandatory for both parents although separate sessions will be offered to each parent. When an order is made at court, it will then be up to the instructed solicitor to make the referral to the appropriate agency which offers PIPs. At the end of the sessions the parent will be given a certificate to confirm their attendance.

The family department at emeryjohnson includes solicitors who are Resolution trained and promote their clients to resolve matters which surround their children as amicably as possible. For further information and/or assistance in dealing with separation and children matters, please contact a member of the Family Department.

 

28 October 2010

 PreNuptial Agreements

The recent Supreme Court decision Radmacher has ruled that prenuptial agreements are recognised under English law and can be enforced in certain circumstances.

The Court ruled that for a prenuptial agreement to be enforced it must be shown that both parties have entered into it of their own free will and not as a result of the others influence or pressure. This means that they must both have a full understanding of the implications of the prenuptial agreement and what effect it will have if they should get divorced.

However, a prenuptial agreement will not be binding if it is considered unfair to hold the parties to their agreement. The Court gave guidance as to what situations would be considered to be unfair. A prenuptial agreement will be held to be unfair if it prejudices the reasonable requirements of any children that the couple have, or if the duration of the marriage means that what was once a fair agreement is no longer considered to be fair. It will also be unfair if the terms do not meet the needs of the receiving party or compensate them for any financial disadvantage that they may have incurred as a result of the relationship.

In a recent survey it was found that 72% of the population agree that prenuptial agreements should be binding in UK Courts.

At emeryjohnson we understand that prenuptial agreements aren't for everyone, and that recognising the possibility of a divorce before you get married is not what most couples would want to do. However, if you would like more information and advice on how to safeguard your assets then we can help you draft prenuptial agreements and advise you on what  to do should your relationship break down. To find out more please contact our offices and ask to speak to a member of the Family Department.

 

19 October 2010

Prison Law Funding the changes!!

Beginning 14th July 2010 there have been some massive changes in the funding of prison law matters.  The biggest change implemented on 14th July 2010 is that any matter opened after that date is now classified as “fixed fee”, simply this means that the legal services commission will pay a set amount for each type of case.

 Prison law is now divided into types of cases:

Treatment Cases

Treatment Cases cover advice and assistance given to clients on legal issues relating to that clients treatment within the prison system and not relating to the clients sentence.  Before a treatment case is taken on an application must be made for prior authority, to find out more information contact the Criminal Team.

The treatment case must relate to a significant legal or human rights issue and cases relating to the clients living conditions will not be funded; the appropriate approach for such trivial cases will be via the internal prison complaints procedure.  Although funding can be obtained if the client has severe mental health issues or learning disabilities such that even with the assistance of other prisoners or staff they will not be able to formulate their complaint properly.

Sentence Cases

These cases cover advice provided to a client on legal issues arising out of his or her sentence and on legal issues concerning a client’s progress through the prison system.  Examples of cases that would fall onto this category are;

• Categorisation and Re-Categorisation.
• Determinate sentence planning.
• Challenging adverse decisions in relation to sentence calculations.
• Legal issues arising out of Home detention curfew or early release on licence

 Disciplinary Cases

These cases cover advice and advocacy provided to client in proceedings before an independent adjudicator.  The sufficient benefit test will not be satisfied in cases where there is no risk to the client that additional days will be placed on their sentence.  For an indeterminate or life sentence prisoner the sufficient benefit test is capable of being passed where there is a real likelihood that the client will be punished in such a way that it will have a damaging impact on a future parole review. 

For disciplinary cases a notional “interests of justice test” should be applied considering – Please contact the criminal team to find out more details.

Parole Board Cases

Parole Board cases may only be undertaken for clients who are convicted and are subject to proceedings before the parole board, or clients who require advice regarding representations in relation to a mandatory life sentences or other parole review.  The final sets of cases in this category include breach of licence conditions and recall into custody cases. 

Before taking on any of the above mentioned case types it must be insured that the matter and client satisfy the qualifying criteria.

 The first stage of the qualifying criteria is the Sufficient Benefit Test.  This test states that advice and assistance must only be provided whether there is sufficient benefit to the client, when having regard to the circumstances of the matter and to include the personal circumstances of the client.  Further; there should be a real prospect of a positive outcome that would be of real benefit to the client. 

 When starting a matter the Sufficient Benefit Test must be applied as a cost benefit test, therefore it must be considered whether a notional reasonable private paying client of moderate means would pay for the legal advice.

 The second stage is that the client must be financially eligible.  To be financially eligible a client’s gross income must not exceed £14,213.00 and they must have no more that £99 of disposable income per week.  A client is automatically deemed eligible should they receive certain benefits including income support and income based job seekers allowance.  A capital limit also applies and the starting point is £1000 for those without dependents.

To find out more details or whether you or somebody close to you would qualify for Prison Law representation contact the Criminal Team on 0116 2554855.

 

24 September 2010

Court of Appeal Overturns Conviction

On 5^th August 2010, Helen Johnson (Managing Partner and Head of the emeryjohnson Criminal Department) appeared before the Court of Appeal (Criminal Division) which included the Lord Chief Justice, Lord Laws at the Royal Courts of Justice in London to appeal W’s conviction and sentence.

Miss Johnson’s argument centred on the issue that the original Crown Court did not have the benefit of psychological or psychiatric reports for W to take into consideration. A subsequent report showed that W suffered from a severe learning disability which meant that he did not have sufficient mental ability to understand his actions or the consequences of his actions. He was unable to understand the court process and the consequences of pleading guilty or not guilty.

Miss Johnson successfully persuaded the Court that due to W’s difficulties, that the convictions should be set aside and replaced with a finding that W was not fit to plead.

The emeryjohnson Criminal Department provides advice and representation to clients in every aspect of the criminal justice system. emeryjohnson have a dedicated police station line which is available 24 hours a day for clients at the police station.

If you have a criminal matter which you would like some advice about, please contact a member of the Criminal team at emeryjohnson on 0116 2554855.

 

9 September 2010

Claire Wilkinson to Qualify as a Solicitor in emeryjohnson’s Child Care Department

On 1^st October 2010, emeryjohnson are very proud to announce that another of our Trainee Solicitors will be qualifying as a Solicitor.  Claire Wilkinson began her career with the firm in 2007 and will complete her training contract this month. Claire has demonstrated outstanding ability and commitment throughout her training with emeryjohnson.

Claire will be qualifying as a Solicitor into the Child Care Department, thereby strengthening the team to a total of five specialist solicitors, four of whom are qualified members of the Law Society’s Children Panel Accreditation Scheme.

Claire has spent a considerable amount of time training in the Child Care Department over the years and is therefore able to understand the pressures posed by social services on family life.  Claire is always on hand to provide the legal advice and support needed during this difficult time.

In addition, Claire is also a qualified police station representative and she will continue to provide this service upon her qualification. She also has experience of dealing with private family law matters and therefore is able to provide an all round service where required. 

emeryjohnson has a good record for retaining their Trainee Solicitors upon qualification. Helen Johnson, one of the founding partners of the firm commented “We believe that the right people make all the difference and this is particularly true in the areas of criminal, family and child care law which require good ‘people skills’ as well as excellent legal advice and representation”.

3 September 2010

‘Welcome Back Minaxi.....’

emeryjohnson are pleased to announce the return of Family Solicitor, Minaxi Patel, following the birth of her beautiful baby daughter last year. Minaxi has vast experience in Family Law and is a much valued member of emeryjohnson’s Family Department. 

The return of Minaxi has strengthened the Family Department, bringing the number of specialist family solicitors in the firm to five.

The Family Team at emeryjohnson specialise in all areas of Family Law, including Divorce and Finances, Children disputes and Protection from Domestic Violence.

The team includes members of the Law Society’s Advanced Family Panel Accreditation Scheme, a trained Collaborative Lawyer and a trained Family Law Mediator.

Please see the ‘Relationship Breakdown’ and ‘Other Family Matters’ sections of our website for further information.

For further information or to make an appointment, please contact the Family Team on 0116 2554855.

 

20 August 2010

Social Networking Sites...Jeopardise Justice

Solicitor Advocate Isabel Wilson, based in our well established criminal department appeared on BBC Radio Leicester’s morning show on Tuesday 10^th August 2010 to discuss the impact social networking sites have on criminal cases and prosecutions.

The Lord Chief Justice of England and Wales has issued new guidance at the court of Appeal for jurors not to browse the web.

Using material from websites such as facebook and twitter to find a suspect could result in a conviction being quashed at court.

A direction was recommended in which the principle is explained not in terms which imply that the judge is making a polite request, but that he is giving an order necessary for the fair conduct of the trial

'The Basic principle'

They must avoid discussing the case on social networking sites.

Any web research should not be brought into the decision-making process as it would be unfair to those being tried.

"Research of this kind may affect their decision, whether consciously or unconsciously, yet at the same time neither side at trial will know what consideration might be entering into their deliberations and will therefore not be able to address arguments about it.

This would represent a departure from the basic principle which requires that the defendant be tried on the evidence admitted and heard by them in court,"

There has also been an impact on ID evidence as two cases collapsed due to the ID evidence being inadmissible as it became clear in court that the witnesses had previously searched for the defendant on facebook and viewed their profile pictures.

For advice and representation for cases in the Magistrates and Crown Court please contact 0116 2554855 and speak with a member of staff in the criminal department.   

 

10 August 2010

No more skullduggery in divorce proceedings

The recent Court of Appeal case 'Imerman' has changed the way a spouse can use their partner’s private financial information in divorce proceedings.

In this case the husband shared an office with his wife’s brothers, who downloaded personal files of his which showed his true financial position and were password protected. The brothers then passed these files on to the wife who had issued divorce proceedings and she handed them to her solicitors. Her solicitors went through this information and returned to the husband certain documents that they considered to be privileged.

When delivering judgement in the case, Lord Neuberger said that these documents must be returned to the husband and could not be used by the wife in the divorce proceedings. In ordering this, the rules which allowed documents to be copied and used in ancillary relief cases have been undermined.

In the future, this means that spouses will not be able to examine or copy their partners documents which could be considered to be confidential unless they have their express consent.

However, a party in ancillary relief proceedings is required to file and serve a Form E, which is a financial statement giving rise to a duty to provide disclosure of their assets. Further, throughout an ancillary relief application, the court will closely regulate the process known as the discovery of documents. It is a matter for the court to determine what evidence is admissible, and whether it should be admitted, balancing one spouse's Convention rights (under articles 6 and 10) against the other's (under articles 6 and 8) and applying the Court’s rules.

Therefore, for example, it will not be open to a wife to pre-empt consideration of her husband's Form E disclosure by “self-help”. If she believes that her husband is going to conceal or dispose of assets, there are remedies available to her, called search orders, preservation orders and freezing orders.

If you require advice about commencing divorce proceedings and settling financial matters, please contact emeryjohnson to arrange an appointment with one of our Solicitors who specialise in Matrimonial Law

30 July 2010

Care Applications Soar

The Children and Family Court Advisory and Support Service (CAFCASS) have released new figures about the number of applications issued by Social Services (Local Authorities) for Care Orders.

CAFCASS are the body who are responsible for representing the interests of children within family and care proceedings. CAFCASS work with children and families and advise the Court as to what they feel will be in the best interests of the children involved within the proceedings.

The figures released by CAFCASS show that between April and June 2010 there were 2,132 applications made by Local Authorities in England and Wales. This is 1.7% higher than the same period last year and the figures from April and May 2010 are the highest ever figures recorded by CAFCASS. It is clear that the Courts and Local Authorities are still feeling the impact from the high profile and sad case of BabyP.

These figures mean legal representation for parents is of the utmost importance and if Social Services are involved with your children, then you should seek legal advice at the earliest opportunity.

Here are emeryjohnson, we offer quality advice throughout your involvement with Social Services. We are one of the only firms in Leicester to have 4 specialist Children Panel solicitors who have expertise relating to families who are involved with Social Services. 

If you require advice or assistance, please contact us on 0116 2554855 and ask to speak to a member of our specialist Care Department.

30 June 2010

Tackling Domestic Violence.....

Breaking the Chains, Making the Links’ Event

One of our legal clerks, Trisha Parmar, from emeryjohnson’s Family Law Department, recently attended the ‘Breaking the Chains, Making the Links’ event held at the Leicestershire Constabulary Headquarters in Enderby.

The event was attended by a vast array of people from Police Officers, Social Workers and Family Aid Workers, to school nurses and volunteers from charities such as the Samaritans.

The event included a presentation from District Judge Atkinson, who deals with a number of cases in which Domestic Violence is an issue, both in respect of applications for Injunctions and applications under the Children Act 1989. The Judge provided the audience with an insight into the legal options available to potential victims and what Judges look for when deciding whether to grant an Order.

The event also included a number of workshops looking at:-

• The Role of the Police
• Working with Survivors
• Working with Perpetrators
• Legal Options
• Working with Children

Domestic Violence is defined as: "Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of gender or sexuality."

Awareness on the issue of Domestic Violence has been raised on a national level. It has meant that it is taken very seriously by the Courts and the police with breaches of Non Molestation Orders now being an automatic Criminal Offence. The police force in Leicestershire can provide specially trained officers to deal with matters sensitively and proactively and it is therefore imperative that all incidents are reported to the police.

emeryjohnson are one of few firms who believe in investing the time to attend events such as these and are always keen to create links with various agencies that deal with the issues surrounding Domestic Violence.

Our Family Law team at emeryjohnson consists of specialists in Domestic Violence Law and who can also provide advice from the initial telephone call through to representation at Court if necessary.

All consultations are private and confidential and we also have members of the team that speak a number of different languages such as Gujarati, Hindi, Urdu, Mirpuri and British Sign Language (Level 2).

To arrange a private and confidential appointment, please contact a member of the Family Law  Team on 0116 2554855.

3 June 2010

IS THE AGE OF CRIMINAL RESPONSIBILITY TOO LOW?

Two boys aged 10 and 11 were ordered to sign the sex offenders register after an Old Bailey jury found them guilty of attempted rape.

The two boys are among the youngest people charged with rape in Britain.

The case has provoked a debate over what the age of criminal responsibility should be.

The same issue came to light with Jamie Bulger’s killers in 1993. Since then there have been calls to the government to raise the age of criminal responsibility as it was felt following this case that most children under the age of 12 do not fully understand the severity of their actions.

Although there was much controversy following the Bulger case, Section 34 of the Crime and Disorder Act 1998 abolished the presumption that a child between 10 and 14 years could not form the necessary criminal intent. The view was that early intervention would prevent offending and to help young people develop a sense of personal responsibility for their misbehaviour.

The age of criminal responsibility in many European countries ranges between 14 and 16. In Belgium the age is 18, Spain-16, Italy- 15, France-13 and Holland -12. However in England, Wales and Northern Ireland the age of criminal responsibility remains at 10, remaining one of the lowest in Europe.

When the issue was brought to the attention of the Ministry of Justice, they stated that those over 10 “knew the difference between bad behaviour and serious wrong doing”. However we should question...Is it only knowing right from wrong or is it understanding the nature and gravity of what a young person has done?

In the recent case of attempted rape by two young boys the judge, Mr Justice Saunders took into account the ages of the two defendants and put in place the following measures:

• Shortening the sitting hours and splitting the time into two slots to reflect a school time table.
• The Judge and lawyers dispensed with their robes and wigs.
• The Judge sat in the court clerks seat so that he was on the same level as the defendants
• The boys sat with their mothers in court rather than alone in the dock.
• The complainant was questioned by the barristers through video link rather than live evidence in court.

The case caused debate over whether Juveniles should appear in a Crown Court either as defendants or witnesses as they may be deemed too immature to understand the allegations involved.

The young complainant in this case was subjected to a string of leading questions which the judge on reflection stated that she may not have understood.

The girl initially told her mother that the young boys had raped her but following cross examination denied that either boy had done so, agreeing that they had been playing a game of doctors and nurses.

This highlights the urgent attention required for changes to the way the criminal justice system deals with children including holding trials in open court with media and public spectators, the questioning of child witnesses in court and the use of custodial sentences.

Felicity Gerry one of the emeryjohnson’s frequently used barristers and author of the sexual offences handbook questioned the decision to take children so young to court for a sexual offence, stating “A lot of children may know that to kill a three year old with an iron bar or to drop concrete on a child is wrong...but proper sexual awareness only comes with greater maturity”.

The case has brought the issue of how children are treated in court and their understanding of criminal activity to the forefront of the English legal system.

Controversy surrounding the age of criminal responsibility in England dates back centuries and is only revisited each time a high profile case results in the conviction of a young child.

Will there ever be a legal system suitable to deal with young children in court proceedings or will the government push the matter aside until another serious case comes to the attention of the media and society?

25 May 2010

Samena Bibi Qualifies

emeryjohnson are proud to announce that Samena Bibi has qualified as a Solicitor, having completed her training contract with the firm in April.

Samena started with the firm as a Legal Clerk, becoming a Trainee Solicitor and finally qualifying into one of our highly competent, reliable and committed solicitors in the Family Department.  Samena has shown what outstanding achievements emeryjohnson’s home grown talents can achieve. 

Samena is always on hand to assist clients with Family Law matters, in particular cases involving children and applications for injunctions. Please contact Samena if you require her assistance.

18 May 2010

Shortage of Foster Carers for Children in Care Proceedings Following Baby P

The Fostering Network has recently reported that there is a national shortage of foster families across the country. The shortage is thought to be around 10,000 places and is due to the large increase in the numbers of children in need who need short and long term foster placements. Social Services are struggling to cope with a decrease in the number of placements available and this means children who cannot stay with their parents at that time are in some circumstances being placed in locations which are many miles away from their families.

Emeryjohnson offer specialist advice to parents, grandparents and children involved with Social Services and the Local Authority. We offer advice and assistance from the earliest stages of intervention, for example case conferences, right through to representation at Court if Social Services make an application to the Court regarding the children.

Emeryjohnson offer sympathetic and expert advice from the beginning to the end of your involvement with Social Services and the Local Authority. If you feel you may need some advice and assistance in this area, please contact us on 0116 2554855 and ask to speak to a member of the Care Department.

For more information regarding the shortage of foster carers, please see www.fostering.net

12 May 2010

Event for Criminal Lawyers

Alisdair Gillespie, Professor of Criminal Law and Justice will be speaking as part of De Montfort University’s Professorial Lecture Series. DMU’s Distinguished & Professorial Lectures are free and open to the public but tickets are limited and must be booked in advance. For ticket information go to www.dmu.ac.uk/news_events. If you cant make the lecture, visit www.dmu.ac.uk for the podcast.

 

4 May 2010

How Old is Old Enough? Children’s Views in Family Cases

Many families are faced with the difficult decision upon the breakdown of a relationship. Which family member should the children live with and where they should live? 

A difficulty facing the Court when they are invited to make decisions about who children should live with and who they should have contact with is when is a child old enough to make the decision for themselves and also how much sway should a child’s view hold.

In Re W (Children) a landmark international child abduction case heard at the Court of Appeal this month held that children who were 8 and 6 had reached such an age and level of maturity that it was appropriate for the Court to take account of their views. The father’s application for the children to be returned to the Republic of Ireland therefore failed.

Whatever the stresses and strains affecting your family, emeryjohnson are here to provide support, advice and assistance through these difficult times. Whether it is the breakdown of a relationship, the involvement of Social Services, or the removal of a child by a parent to a different country.

We offer specialist advice whatever your family issue and have experienced solicitors who are members of the Solicitors Regulation Authority’s Children Panel and Advanced Family Law Panel.

If you would like to arrange an appointment, please do not hesitate to contact the office on 0116  2554855 or complete the enquiry form on the website.

27 April 2010

IN THE CALL OF DUTY!!!!

 Meet the latest duty solicitor at Emery Johnson.  The already second to none Criminal Team welcomes it newest addition Michelle Harding.  Like a seed in spring Michelle is one of emeryjohnsons' home grown talents, with her firm seeing her grow and progress from  Clerk to Trainee to Solicitor and now Duty Solicitor.  To receive representation you can rely on call the emeryjohnson Criminal team on 0116 2554855.

 

20 April 2010

Comparing Collaborative Law, Mediation and Conventional Divorce

Collaborative Law is relatively new to the UK, but it can be a quicker and cheaper alternative to using a traditional divorce solicitor or a mediator. Collaborative law focuses on discussing issues and problems face to face, and control of the divorce is handed back to the separating couple, rather than being left to the Court, which can be stressful and expensive.

Should you instruct a solicitor, it is normal practice for solicitors to see either the husband or wife and then send written proposals to the other solicitor. All of this could be unsuccessful and result in Court proceedings. The process can be stressful and very expensive, at what is usually a very difficult time. Court hearings can be months apart and the whole process can take months or even years.

In Collaborative law, the couple agree not to start Court proceedings, to reach an agreement outside Court and discussions are face to face, with the couple and solicitors present. A non-aggressive and amicable approach is encouraged. If agreement cannot be reached, the couple will have to instruct new solicitors, which is another incentive to agree matters rather than incurring the additional expense of instructing a fresh solicitor. Collaborative law focuses on the needs of both parties and especially the needs of the children.

Similarly, in mediation, discussions are face to face, but this time without the involvement of solicitors. The mediator is neutral and helps the couple reach their own solutions to a range of issues, including finances and the children. The mediator does not give legal advice, unlike in collaborative law, as the aim is to reach a compromise, which is in the best interests of the family, rather than focusing on rights or entitlement. Of course, the couple can take legal advice from their own solicitor along the way.

Another difference between Collaborative law and mediation is that with collaborative law outside professionals, such as Accountants and Marriage Guidance Counsellors can be used to help move towards an agreement. Once the agreement is finalised, the collaborative lawyers involved, prepare and file the paperwork at Court.

In both collaborative law and mediation a speedier resolution is achievable which can help separating couples to move onto the next chapter in their lives with as little upset as possible.

14 April 2010

emeryjohnson has joined the New Media Age!! Follow us on Twitter at https://twitter.com/emeryjohnson

14 April 2010

To mediate or not to mediate....... that is the question...

emeryjohnson offer a wide range of services which includes in-house Mediation. Joanne Donald who is a senior solicitor in the Family Department qualified as a Resolution mediator in 2009.

What is mediation?

Mediation is an alternative to the court process which can often be costly, lengthy and acrimonious. The Mediator does not take sides and can provide a safe environment for your discussions regarding your separation and issues regarding the house, children and many other difficulties you may have. 

Mediation can help to improve communication and reduce tension as well as helping you both to feel that you have been heard. The Mediator will help you reach solutions that you both feel are in the best interest of your family.

 We have reached a settlement through our mediator...what next?

You may wish to discuss proposals or offers made at Mediation with your solicitor. Once you have done this your solicitor can draw up the documentation to put the legal formalities in place. Until this happens, you are not tied to any offers made at Mediation.

If you would like to book an appointment please contact Trisha Parmar in the Family Department who can arrange an appointment convenient to you both or for further information, a call back from Joanne Donald can be arranged.

 

7 April 2010

Making history.... the trial without a jury.....

Four men were recently convicted of charges relating to an armed robbery at a Heathrow warehouse. This was the first serious criminal trial to be held without a jury in England and Wales. New laws meant the trial could be heard by a judge alone after the Court of Appeal ruled there was a serious danger that a jury could be compromised. There had been three previous attempts to try the case by jury, lasting up to six months at a time.

The 'sacred principle'' of trial by jury was set aside by the Court of Appeal last year, in the first case using powers under the Criminal Justice Act 2003, but campaigners such as Director of Policy for Liberty, Isabella Sankey,  called the decision ''a dangerous precedent''.  "The right to jury trial isn't just a hallowed principle but a practice that ensures that one class of people don't sit in judgement over another and the public have confidence in an open and representative justice system.

Is this a justified rare exception or a harsh insight into the future of serious criminal trials? As serious crime continues only time will tell....

31 March 2010

A new edition to the Children's Panel at emeryjohnson.

emeryjohnson are pleased to announce that, Child Care Solicitor, Charlotte Liddell is now a qualified member of the Children Panel Accreditation Scheme. We would all like to say a big congratulations to Charlotte who has worked incredibly hard to achieve her accreditation. This is a real boost to emeryjohnson as now all four Solicitors in the Child Care Department are members of the Children Panel guaranteeing clients the best advice from specialists in their field.

Partner, Emma Mitchell, Associate Solicitor, Oilen Wan and Senior Solicitor, Halina Patecka are the other Children Panel members making up the rest of the Department. As members of the Children Panel all of the Child Care Solicitors can represent both parents in child care proceedings involving Social Services, as well as represent Children through the instructions of their Children's Guardian also known as CAFCASS officers.

If you are struggling with the pressure of Social Services being involved with you and your family then do not hesitate to make contact with the Child Care Department at emeryjohnson to access the advice and support you need.

Email a prisoner.com

If you are the partner, family member or friend of a person currently serving a prison sentence then you need to be aware of the new, efficient and cheap way to stay in contact with your loved ones.

Email a prisoner.com is a new scheme that has been introduced by the Prison Service in England and Ireland to communicate via email with prisoners. This service was launched at HMP Gartree, Market Harborough, Leicestershire on the 22^nd March 2010 and the scheme will soon be rolled out nationwide.

The service is easy to access, set up and use, the only information you require is the prisoner's name and prisoner number. The service costs 25p per email sent which is cheaper than using the postal service. Once your email is sent it will be picked up in the Prison's post room as per normal mail, placed into an envelope and sent to the prisoner within hours. For more information on how to set up an account the please visit www.emailaprisoner.com

Legal professionals please be aware that using this email service is not confidential and does not hold the same legal privilege as post marked "Rule 39 applies" does however if you need to get an urgent message to a prisoner which is not confidential then this could be your solution.

Remember that emeryjohnson have a committed, enthusiastic and hard working Criminal Department who can assist you with 24 hour representation at the police station as well as advice and representation with offences dealt with at both the Magistrates and Crown Court. emeryjohnson also offer expert advice in relation to Prison Law so if you have a Criminal matter that you require assistance with, do not hesitate to contact the Criminal Department at emeryjohnson.

18 March 2010

Race for Life

Carey, our office manager, has announced that she will be running the Race for Life again this year. This will be the fourth consecutive year that she has run at the event to support such a great cause. If you would like to follow Carey, or even donate then please visit:
http://www.raceforlifesponsorme.org/careyyork3

1 February 2010

Have you registered your department store divorce list yet?

With the days of any stigma attached to divorce long gone, retailers are finally catching onto the commercial opportunities surrounding the break-up of relationships. Divorce parties are not unheard of and, while we'd be the last to judge how you choose to commemorate the end of your relationship, we can actually see a perverse logic in the divorce list.

Unlike in years gone by when a wedding list really would contribute to setting up home together, most couples now live together before their 'big day', so probably have most of the household appliances and china they need. Hence the rise in requests for holiday vouchers to contribute to the honeymoon or even just cash donations in place of wedding gifts.

Not ones to take this diminishing of a lucrative retail opportunity lying down, Debenhams is fighting back with the introduction of a divorce list. Opportunistic? Cynical? Overly commercial? Maybe. But, when you think about it, now that you are going to be setting up home independently, you probably do need an extra toaster.

29 January 2010

'The Boys are Back' at a cinema near you.

Our Leicester family and care solicitors are wondering what social services would make of the scene featuring a small child riding on the bonnet of a Landrover in this film of a Father coping (or not) after his wife's death - we are taking our hankies!
 

June 2009

Bringing More Dignified Divorce To Leicester 

Jo Donald, who has been practising family law with emery johnson for five years, has qualified as as an accredited mediator, swelling the ranks of these specialist professionals to just 60 across the Midlands.

As couples increasingly opt for a more modern, dignified divorce, dissolution of their civil partnership or disentangling from a live-in partner, emery johnson is delighted to join only one or two other family practices in Leicester offering this service.

The growing trend for mediation might be driven by a desire to avoid the tawdry, tit for tat acrimony we often read about in the celebrity press. Through mediation, couples can emerge from a relationship free of bitterness, to enjoy a civil, amicable, perhaps even affectionate relationship with a former partner.

If you choose mediation, you'll still need a solicitor, but by choosing one who practices collaborative law, it is possible to enjoy a dignified divorce, and a happier transition to the next stage in your life.

Find out more about mediation and other routes to a dignified divorce with emery johnson.

 

May 2009

Divorce Fair Comes To Leicester

After launching in Brighton, an area with the highest divorce rate in Britain, the Starting Over Show comes to Leicester on 11 June.

And, despite the alarmist response from some parts of the community, the fair's aim to support people through separation and divorce, as they start their new lives, gets our support.

As members of Resolution, practising collaborative law and with an accredited family mediator among our solicitors, we have long held the opinion that there is life after divorce and we want to help you to take your first steps back to happiness.

If you're ready to make a break from your own relationship, contact us to find out how we can help.

 

APRIL 2009

Press to be allowed access to Family Law Courts

If you've heard, or are worried, about the recent changes given the press access to the Family Court, we'd like to offer some reassurance.

In practice, the press will still have to apply to the judge to be allowed into the court and, if press coverage could present any risk whatsoever to the parties involved, this request will not be granted.  Please contact us if you need any further information.