Restraint orders

first_imgIn an article that appeared in the In Practice section of the Gazette (see [2009] Gazette, 30 April, 16), John Masters questions whether the Crown Prosecution Service has locus standi to apply for a restraint order under the Proceeds of Crime Act 2002 (POCA 2002) while a case is still at the pre-charge investigation stage and a prosecution has not yet commenced. Pre-charge restraint applications fall under condition 1 of section 40 of POCA 2002, which requires that (a) a criminal investigation has been started in England and Wales with regard to an offence, and (b) there is reasonable cause to believe that the alleged offender has benefited from his criminal conduct. Section 40(9) of POCA 2002 specifically provides that, when the first condition is satisfied, any references in part 2 to the defendant are to the alleged offender and that any references to the prosecutor are to the person the court believes is to have conduct of the proceedings. The prosecutor is, therefore, a permitted applicant for a pre-charge restraint order under section 42(2)(a) of part 2 of POCA 2002. Mr Masters asks how the court is to know who the prosecutor will be when an investigation has yet to be completed. Section 3(2)(a) of the Prosecution of Offences Act 1985 provides that it is the duty of the director of public prosecutions to take over the conduct of all criminal proceedings, other than specified proceedings, instituted on behalf of a police force and this provides sufficient basis for the court’s belief that the CPS is to be the prosecutor when it makes applications for pre-charge restraint orders on behalf of the police. Mike Kennedy, chief operating officer, Crown Prosecution Servicelast_img read more

Can lawyers agree over contingency fees?

first_imgContingency fees, which are widely used in employment tribunals but banned in other areas of law such as personal injury, have come to the fore recently as various bodies have submitted their responses to the Ministry of Justice’s consultation on the issue, launched in July. The bar, for example, has just called for a halt to reforms to give more time for discussion and debate. But for some organisations, responding to the proposals has been somewhat trickier than others. Take the Employment Lawyers Association, for example. Its membership is split down the middle over the issue of contingency fees. While they can all agree that they want better, clearer regulation so that everyone knows what to expect, that’s where the consensus ends. Trade unions want to see tighter regulation of the controversial ‘settlement clauses’ which govern what happens when a case settles. They argue that the clauses pose a conflict of interest between an adviser’s desire to settle the case and safely trouser their cut of the damages, and what might be a claimant’s wish to take a case all the way to court in the hope of receiving maximum compensation, as well as (perhaps) a chance to see their former employer squirm in the courtroom. While that conflict might be hard to deny, many employment lawyers still see settlement clauses an essential way for them to limit their own risk. They would claim that the contingency fee arrangement would be far less attractive without them. The MoJ’s consultation on this extremely sticky subject closed on 25 September. But contingency fees are, of course, also currently being scrutinised by Lord Justice Jackson as part of his review of civil costs, commissioned by none other than the MoJ. Will the Ministry wait for the outcome of the report it commissioned before it presses ahead with its reforms? The timing of the consultation seems a tad daft. Perhaps that’s one thing all employment lawyers can agree on.last_img read more

Law Commission calls for greater use of civil penalties

first_imgThe Law Commission has proposed a cut in the number of criminal offences for regulatory breaches. In a consultation published last week, the commission suggested that using civil penalties for technical breaches of farming, food safety, banking and retail laws would save the criminal justice system £11m a year and reduce cost to regulators. The commission said it is disproportionate for regulators to rely wholly on criminal law to punish and deter activities that are merely ‘risky’. It recommended that criminal sanctions should only be used to tackle serious wrongdoing. In its paper, Criminal Liability in Regulatory Contexts, the commission proposed that regulatory authorities should make more use of cost-effective, efficient and fairer civil measures to govern standards of behaviour. It said a set of common standards should be established to assess levels of wrongdoing, and existing low-level offences should be repealed where civil penalties could be as effective. The commission said that, where criminal offences are created in a regulatory context, they should require proof of fault elements such as intention, knowledge, or a failure to take steps to avoid harm being done. It said business and individuals should generally not be penalised by the criminal law if they have made real efforts to comply with their legal obligations. Jeremy Horder, the commissioner leading the project, said: ‘Civil penalties are quicker and cheaper to enforce but they are not a soft option. People who breach regulations will often discover that civil fines can be higher than the penalties imposed by the [criminal] courts. ‘The commission believes that a principled criminal law should be used by regulators to target only the most serious cases of unacceptable risk-taking.’ Law Society president Linda Lee welcomed the consultation. She said: ‘In recent years, the UK criminal justice system has been subject to a constant barrage of new legislation and offences… This expansion of criminal law has criminalised an increased proportion of the population and further disrupted the balance between the power of the state and the freedom of the individual.’ The consultation closes on 25 November.last_img read more

Shaggy dog stories

first_img James Morton is a writer and former criminal defence solicitor Given the British love of animals, the urbane barrister Patrick Back believed that if he could introduce a dog into his closing speech, he had one foot in the acquittal door, writes James Morton. His favourite was when the earl comes home and finds his child and the bed covered in blood, and his bloodied hunting dog lying beside it. He kills it and, pulling back a curtain, discovers a dead wolf. I think it was meant to show that the jury should not jump to conclusions. In any event it was a spellbinder the way he told it. My own dog stories are by no means as heroic. I was trying to get a witness to move the story along, so that my client could not possibly have been seen by the police on a rooftop a few miles away. She was meant to say she had tired of Coronation Street and switched the TV onto the football, or something like that. ‘And what happened next?’ I ventured. ‘I said to Linda, that’s ma daughter. Linda, the dog’s got distemper so take its blanket to the launder-y-ette and give it a good wash’. Quite irrationally, I’ve never used a dog story since. Early in my career I defended a greyhound trainer at a now long-defunct track. When we had added up his income and subtracted the expenses, there was a very substantial deficit. How could he possibly survive with this happening week-in and week-out? He smiled beatifically, ‘well sir, once a fortnight one of them dogs runs just for me.’ The late Sir Arthur Irvine was said to have been the victim of his instructions back in the days when drink-driving cases could be heard by a jury which, on the John Bradford principle of ‘there but for the grace of God, go I’, would acquit if at all possible. But it could have been a number of barristers. He was doing nicely and was well on the way to an acquittal, with the police officer agreeing the man had got out of the car, perfectly properly, given his name, perfectly properly, and given his address and occupation and handed over his keys, again perfectly properly. ‘So, summing up, officer, from the moment you stopped him he did everything perfectly properly?’ ‘Yes sir.’ ‘And then he got into the back of a police car and sat next to a lady wearing a fur coat?’ ‘No sir, that was police dog Giles.’last_img read more

Bar aptitude pilot a success

first_imgA proposed aptitude test for bar students could accurately identify individuals who would do well in their courses, according to pilot studies. The Bar Standards Board proposed the test for students applying for the bar professional training course following the 2008 Wood review. The hour-long test is designed to assess candidates’ suitability and predict the likelihood of success or failure. A report to the BSB last week said a test would help to ensure that students would not ‘needlessly waste time and money on a course that would not ultimately prove beneficial’. The report covers the findings of two pilots, on 200 students in 2009-10 and with students who started the course in September 2010. It concludes that grades and final exam scores ‘showed strong relationships’ with test scores. It says there was no evidence to suggest that the test showed any adverse impacts for gender, primary language, age, disability or university. However John Carrier, chair of the BSB’s education and training committee, said ethnicity did affect scores, with minority groups being less successful, so an equality impact assessment would be carried out. A full report of the findings will go to the BSB next month.last_img read more

Online confusion

first_img Susan Singleton,Singletons, Pinner Feeling in masochistic mood, I filed my tax return on a recent Sunday morning and applied online for the new SRA practising certificate in the afternoon. Despite its shaky start, the online registration was fairly smooth. There were difficulties on the fee-earner page, which a number of people have encountered, as it did not clearly say to search for the name and then on the right click on that fee-earner to confirm their details. The system also wanted me to state when I ceased to hold client money, but I have never held it, so in order to progress I had to say I stopped holding it the day I started my practice. It took me over an hour to complete the form, which is longer than usual with the paper version. I am the only person in my firm. The fee was less than last year. Let us hope reductions continue and cuts are made. I was disappointed that, at the end, the system would not let me pay by debit or credit card, although supposedly that is an option. I tried many times, but only a blank page which should have been WorldPay came up. So, unlike the paper system, I will have to return to the issue to pay an invoice shortly when one is available. One advantage of recent problems is that instead of paying in October, we have had a three-month delay in having to pay! Page one had a disheartening ‘it’s’ for ‘its’ and a page near the end contained a sentence which would not have been out of place in a list of examples of the worst use of prepositions; but overall it is not too bad.last_img read more

*Tips on voicing your confidence

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Hansom

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But can we trust clients?

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Get your free guest access  SIGN UP TODAY Subscribe now for unlimited accesslast_img read more

NSCC survey of specialists highlights strategic industry problems

first_imgGet your free guest access  SIGN UP TODAY Subscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more