Money Laundering -SLPs

The UK government has unveiled plans to close loopholes around Scottish Limited Partnerships (SLPs) which have been abused to launder dirty foreign money.

Thousands of businesses in Britain use limited partnerships and SLPs legally. However government research suggests that they have been exploited in complex money laundering schemes. These limited partnerships have also been linked to international criminal networks in Eastern Europe and possibly been used in arms deals.

Scottish Limited Partnerships?

An SLP is one that is formed by at least two partners, one of which must be a general partner, who is liable for any debts incurred, and one limited partner, who has limited liability but cannot play a role in how the partnership is run.

The SLP has been used in recent times for modern business purposes such as private equity and property investment fund structures.  SLPs differ to elsewhere in the UK as they have “legal personality”, which allows them to own property, enter into contracts or take on debts

New government proposals

Under new proposals, users will need to have a real connection to the UK and do business or maintain an address in Scotland to operate an SLP.

They will also need to register through an agent who will carry out anti-laundering checks.

See the story from the BBC here;

http://www.bbc.co.uk/news/uk-scotland-scotland-business-43935839

 

SURGE IN EMPLOYMENT CLAIMS

 

The surge in employment claims, according to the Ministry of Justice has been fueled by a Supreme Court’s ruling in July last year. The ruling stated that employment tribunal fees were unlawful; as a result the government promptly scrapped the fees with immediate effect.

There has been a near doubling in employment tribunal claims since the decision of the Supreme Court. The result has been to swamp the system with claims causing delays of a year in London and between six months and a year in other parts of the country.

The system is struggling to cope with the sudden increase and has resulted in phones not being answered, emails ignored and hearings cancelled at short notice because of a shortage of judges. The delays are also causing more stress for claimants as well as potentially increasing costs.

 

https://www.lawgazette.co.uk/law/employment-tribunal-claims-soar-by-90/5065172.article

Burglary and Self-Defence

The law of self-defence is again in the spotlight following the case of 78-year-old Richard Osborn-Brooks. Mr Osborn-Brooks was briefly investigated after the fatal stabbing of a burglar who entered his property.

So, what are your rights when dealing with an intruder?

There is no ‘right of revenge’ in English law, punishment, following conviction is meted out by the courts.

Can I Defend Myself or my Family From Attack?

You do have the right to use reasonable force to defend yourself. There is a mix of statutory and common law provisions that provide for self-defence.

Section 3 of the Criminal Law Act 1967 provides:

“A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.”

The government, with much fanfare, enacted section 76 of the Criminal Justice and Immigration Act 2008, to provide for a so-called ‘householder defence’. Also, case law (common law) also defines the scope of this defence.

What does self-defence mean?

The householder is entitled to some latitude as to the degree of force used; if the jury do not regard the degree of force as being completely over the top they need carefully to examine all the circumstances in determining whether the prosecution have proved that the degree of force used was unreasonable.

The kind of circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable. These might, for example, include the shock of coming upon an intruder, the time of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a knife or stick that would lawfully be to hand in the home), the conduct of the intruder at the time (or on any relevant previous occasion if known to the defendant). Each of these might lead to the view that what was done, such as using a knife, which otherwise in a different context might be unreasonable, in the circumstances of a householder coming on an intruder might, in all the circumstances of such a case, be reasonable.

Is this a straightforward law to understand and apply?

No, not really! But it essentially boils down to this – if you do what you genuinely believe to be necessary to defend yourself or others from attack, the law will provide a defence. Your response will not be judged to a nicety, and the case law makes very clear that a degree of latitude will be given, due to the particular circumstances that you would face.

The case of Mr Osborn-Brooks is tentative support for the re balancing of law in this area having worked well.

How we can assist

To discuss any aspect of your case please contact Paula Bristow on 01273 733648

How organisations can benefit from GDPR

 

Most organisations should have heard about the changes to data protection rules -GDPR- which are being introduced on 25 May 2018. On the face of it the changes appear to be another layer of bureaucracy however they provide you with an opportunity to review and improve systems and processes.

The new regulations, which form part of the new Data Protection bill, offer greater clarity and in some cases simplify the position on the processing of personal data. This provides greater protection for individuals and at the same time greater clarity for organisations on how to approach this issue.

The need for accurate data is essential for compliance.  Better data will lead to better marketing and you can target your marketing more effectively if you are confident that your data is accurate.

The new regulations are also an opportunity to have a “spring clean” on your data – get rid of the rubbish and reduce the amount of data that you are holding and backing up. Storage, whether it is electronic or in hard copy, is expensive and here is an opportunity to have a purge and actually save money.

Greater clarity over the GDPR regulations can also reduce risk for your organisation.

The increase in fines for non-compliance is significant however there is greater structure to the regulations and the Information Commissioners Office (ICO) is producing guidance regularly to assist organisations.

Finally the changes provide an opportunity to get greater control over your data processing. Individuals have to opt in rather than opt out of you processing their personal data. There is also more responsibility on data controllers when they transfer data to third parties who will process that data on their behalf. This could be the time to review existing arrangements and introduce/revise contractual arrangements with these third parties to be clear about their responsibilities when handling your data.

The new regulations are going to mean a lot of work for organisations, but with planning you can review and improve business processes.

James Rann

DATA PROTECTION AND THE PRESS

Following on from an article on this subject recently by James Rann of Warrens Law and Advocacy there is a current story running in the press on the same subject.

Max Mosley, former head of F1, wants to use data protection law to prohibit the press from publishing previously reported stories about his social life. Mr. Mosley is seeking to compel the press to not only cease to report on historic stories (for which he won damages for breach of privacy) but to also erase the data on this to prevent future reporting on the subject. He does not deny the activity originally took place but the retention of this data is now irrelevant and excessive therefore is being processed unlawfully.

The current thread in this long running story about Mr Mosley, and which has already been reported in the national press, is about his alleged funding of an organisation which campaigns to regulate the press (and which, naturally, the press is fighting).

The current action being taken by Mr Mosley follows a High Court judgement that the current regulator is free of influence from Mr Mosley and his family and therefore any stories that he is able to influence the regulator are inaccurate. It is believed to be the first time the Data Protection Act to restrict reporting in the press.

The Data Protection Act, which is soon to be revised and updated, oversees how organisations manage data about individuals and has a broad exemption for the press.

 

What Happens in Vegas, May Not Stay in Vegas!

If you commit a criminal offence in the UK, the police will record details of that offence and any subsequent sentence so that it is revealed during any future PNC (Police National Computer) check.

If you commit a Criminal offence abroad, can that be kept a secret? The answer depends on where the crime has been committed.

Offences in the EU

The UK is part of EU Council Framework Decision 2009/315/JHA; this means that if the foreign offence has an equivalent offence in England & Wales which is deemed “recordable”, it will be notified to ACRO (Automating Conviction Requests Office) who will add it to the PNC.

If a link to Scotland or Northern Ireland is identified in the transmitted data through place of birth or address, the information will be forwarded to the Scottish Police Services Authority (SPSA) and/or the Police Service of Northern Ireland (PSNI) for their information.

Despite this clear framework, it is still often the case that offence information is not, for whatever reason, always reported back to the UK.

What is a “recordable” offence?

Where a foreign offence is received by the UK police it will be updated on to the PNC if it is listed as being a “recordable” offence as set out in The National Police Records (Recordable Offences) Regulation 2000.

The Regulation states that recordable offences are those punishable with imprisonment and those specified in the Schedule to the Regulation.

Offences committed outside the EU

If you have been convicted in a country outside of the EU, the conviction details may be forwarded to the UK if you are a UK national. Much will depend on which country is involved and how committed it is to the exchange of criminal records data, but as outlined below, even if the information hasn’t been automatically supplied to UK police, it may still be requested at a later date.

Police Requests

The UK is part of the International criminal conviction exchange, which enables police forces to easily exchange relevant information, on request.

When a foreign national is arrested in the UK, for the majority of police forces the process of requesting a foreign criminal records check is now automated, taking around 10 minutes to process.

Similarly, even if an offence committed outside of the UK has not been communicated to UK police, a request may still reveal it.

And what about foreign nationals who commit offences in the UK?

The UK will exchange records with foreign police forces in accordance with the above rules. To give you an idea of the popularity of criminal records exchanges, between March and November 2017 ACRO received more than 70,300 requests from EU countries alone.

Competent Criminal solicitors will advise you as to the impact of UK convictions if you are a foreign national and will also recognise that checks during criminal proceedings in the UK may reveal convictions from abroad.

This is important as the information could be used as part of a bad character application and may also be relevant to sentencing. Also, it will be important in multi-handed cases to ensure that the full criminal past of any co-defendant has been explored, as this may provide evidence in your favour.

What happens in Las Vegas, or London, or anywhere else for that matter, may be a secret for now, but once criminal proceedings commence it is an altogether different story.

How can we help?

Warrens Solicitors recognise the International aspects of criminal justice; if you are facing investigation or proceedings for any offence, it is important that you get in touch with us as early as possible so that we can best protect your interests.

 

Doctors in the Dock-Criminal Proceedings

 

 

Many medical professionals are up in arms following recent Criminal Proceedings involving Dr Bawa-Garba (General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin).

The case followed on from proceedings before the Medical Practitioners Tribunal which had rules that Bawa-Garba should be suspended from practice for a period of one-year. That ruling was challenged by the General Medical Council, resulting in Bawa-Garba being erased from the medical register, which brings to an end her right to practice medicine.

The Court observed that it reached ‘this conclusion with sadness but no real hesitation’.

In November 2015 Bawa-Garba was convicted at Nottingham Crown Court for an offence of manslaughter by gross negligence. She was sentenced to two years imprisonment, which was suspended.

This conviction came about due to her negligent care of a six-year-old boy, who died. An appeal against conviction in December 2016 failed.

In the later High Court proceedings, it was observed that ‘her failings on that day were “truly exceptionally bad” and that this must be reflected in the sanction.

So, why did the Medical Practitioners Tribunal get it so wrong and only order a suspension?

When the MPT heard the case, it had the benefit of hearing a substantial body of evidence about the pressures placed on Dr Bawa-Garba and the failings of others. In essence counsel for the GMC submitted that the Tribunal had in effect allowed evidence of systemic failings to undermine Dr Bawa-Garba’s personal culpability, and to do so even though those failings had been before the Crown Court which convicted her.

The Tribunal had therefore decided to find the Doctor less culpable than the jury had as a matter of law, and for that reason, the decision could not stand.

The High Court observed: ‘The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance. There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad.’

A crowd-funding campaign to assist Dr Bawa-Garba has been set up. One of the doctors behind the crowdfunding campaign, Dr Moosa Qureshi, said: ”There needs to be greater transparency as to why these decisions were made and who made them. Many of us feel that Dr Bawa-Garba was unfairly discriminated against and scapegoated for multiple system failings that could easily have happened to any of us in the current political crisis of the NHS. We want patients to be protected and for this doctors need to be able to look after patients without fear that they will be blamed or worse struck off when working in unsafe and dangerous conditions.’

So, many believe that Bawa-Garba has been made a scapegoat for systemic failings in the NHS.

In a further twist to this story, Health Secretary Jeremy Hunt has ordered a review into criminal manslaughter so far as it affects medical practitioners.

The health secretary says clarity is needed about drawing the line between gross negligence and ordinary errors, and that ‘Doctors should learn from – not fear – mistakes.’

The review, led by Sir Norman Williams (a former President of the Royal College of Surgeons), is to report by April 2018.

By any measure this is a sad case for all concerned and criminal practitioners will be observing the fallout to assess its future significance.

How We Can Help

If you are a professional person facing criminal proceedings, contact Rodney Warren on 01323 430430 for a confidential consultation.

 

Revenge Porn can be an expensive business

“Revenge porn”, the criminal act of posting online intimate sexual pictures/video of a person without their consent, carries a potential prison sentence of up to 2 years, so already there is every reason to think twice before exacting this type of revenge on a former lover.

However, celebrity vlogger Chrissy Chambers has taken the matter one step further in launching an action in the High Court designed to secure no further infringement of her rights, and substantial financial damages.

Her ex-partner allowed six sexual videos to be uploaded to the adult site redtube.com, with Ms Chambers being identified by name in 3 of those videos. The videos were filmed in her home, but without her consent, and showed sexual activity between her and her partner. She argued in court that this had caused her ‘serious distress’, resulting in post-traumatic distress disorder.

In the 19 months that the videos were online a large number of people had viewed them, including some people who wrote to her expressing their displeasure at the belief that she was ‘intentionally involved in pornography’, to such a degree that they did not wish to watch her offerings on YouTube.

In a settlement agreed by the High Court on 18th January 2018, her partner accepted that the posting of the videos was in breach of confidence, misuse of private information and a breach of her article 8 rights (the right to privacy).

To provide future protection, copyright in the videos was transferred to her.

While this is not the first action of its kind (singer Tulisa Contostavlos brought a similar case in 2012), it is notable that Ms Chambers has actively sought publicity about this case, when she could have chosen anonymity.

The legal action was funded by way of a crowd-funding campaign, itself designed to raise public awareness of this issue.

By doing so, she has put this issue into the public domain, and it may well act as a deterrent to those thinking of doing something similar in future, but also a reminder to victims that there could be an easy route to substantial damages, provided of course that the person committing this unlawful act has the means to pay them.

We Can Assist

To discuss this, or any other matter, please contact Paula Bristow on 01273 733648 for prompt specialist advice.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Unexplained Wealth Orders

On 31st January 2018, regulations bring into force sections of The Criminal Finances Act 2017 dealing with unexplained wealth orders (UWOs), along with various other related provisions.

The purpose of this new order is to allow for certain people who obtain property which would ordinarily be beyond their obvious means, to be required to prove how they lawfully acquired it. This is in effect a reverse burden of proof.

Law enforcement agencies often have reasonable grounds to suspect that identified assets of such persons are the proceeds of serious crime. However, they are often unable to freeze or recover the assets under provisions in the Proceeds of Crime Act due to an inability to obtain evidence (often due to the inability to rely on full cooperation from other jurisdictions to obtain evidence).

The authorities which may apply for such an order are:

  • The National Crime Agency
  • HM Revenue and Customs
  • The Financial Conduct Authority
  • The Director of the Serious Fraud Office
  • The Director of Public Prosecutions

If you are subjected to an order of this kind, you must provide a statement which does the following:

  • Sets out the nature and extent of your interest in the property
  • Explains how you obtained the property, particularly how any costs involved were met
  • Provides details of any settlement if the property is held by trustees
  • Sets out any other information about the property specified in the order

In addition to a statement, it may be necessary to supply documents connected to the property as required by the order.

Before it can make an order, the High Court must be satisfied that the following criteria are met:

  • There is reasonable cause to believe that the person in question holds the property and that it is worth over £50000
  • There are reasonable grounds for suspecting that this person’s known income (from lawful sources) would not be enough to obtain the property
  • The person in question is a politically exposed person (see definition below) or there are reasonable grounds for suspecting that they are or have been involved in a serious crime or someone connected to this person is or has been so involved.

A politically exposed person (PEP) is someone who is or has been entrusted with prominent public functions by an international organisation, a State other than the UK or another EEA State, a family member of such a person, a close associate or someone connected to them in another way.

It is a criminal offence to knowingly or recklessly make a statement that is false or misleading in response to an unexplained wealth order. Doing so can result in two years’ imprisonment and/or a fine. This offence can be tried in either the Magistrates’ Court or the Crown Court.

Failing to provide the information, in full or part, may prejudice any civil forfeiture proceedings.

In some cases, a UWO will be accompanied by an interim freezing order. This prohibits the respondent to the UWO and any other person with an interest in the property from in any way dealing with the property.

Where the property is thought to be in a country outside the UK, the Secretary of State may forward a request for assistance to the government of the receiving county. This can be a request to prevent anyone in that country from dealing with the relevant property and provide assistance in managing it as required.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

The “Right to be Forgotten”

On the blog today interesting reading on new data protection laws.

Redemption has always been an important part of our justice system; you do the crime, you do time. Once your debt is paid, you should then be free to start again, without forever being haunted by ghosts of the past.

We all recognise that there must be limits to this principle, so if convicted of murder or rape, you are unlikely ever to be able to expunge the past. But for relatively minor offending, or offending so far in the past to render it irrelevant, one might expect that you could move on.

Before the internet age, moving on was possible, local news was soon forgotten, or people could move away and start again. But now, with the growth of online news and the ability of almost anyone able to publish almost anything, the picture is different. Powerful search engines such as Google ensure that if the information is out there, there is a method of finding it.

So, to counteract this, people now speak of a ‘right to be forgotten’, and this is where data protection laws are being utilised.

This ‘right to be forgotten’ is not a new concept introduced under data protection laws. The principle was long-ago recognised by the UK Parliament with the Rehabilitation of Offenders Act 1974. That Act provides that after a specified period of time (which varies according to the sentence that was imposed) a person’s previous convictions are regarded as having been “spent”. The underlying rationale is that, for all but the most serious offences, people should not have a lifelong “blot” on their record but should be able to live without that shadow, and the consequences it may have for their employment or other areas of their life. So, the principle of a “right to be forgotten” was recognised in domestic law many years ago, and long before data protection laws came along. Its emergence in the field of data protection simply reflects the significant development in the dissemination of information represented by the Internet.

What does the law say?

As a result of the harmonisation of data protection laws across the EU, the European Court of Justice has jurisdiction to determine issues arising from data protection cases. Courts of the member states of the EU can refer cases to the ECJ for rulings as to the interpretation of the law. One such case – Google Spain SL –v- Agencia Espanol de Proteccion de Datos (AEPD) (Case C-131/12, 13 May 2014) [2014] QB 1022 – has become fairly well-known and has been the subject of public debate. It is colloquially known as the Google Spain case. It is the case that first really brought to prominence the notion of a “right to be forgotten”.

Put very simply, the case decided that, after a period of time, certain information about a person (although it may have been accurate many years ago, and may remain so) should not continue to be made available to the public in Internet search results because to do so would infringe the data protection rights of the individual concerned. The right was not absolute. It could be outweighed by other considerations. The Court explained:

“It must be pointed out at the outset that….processing of personal data, such as that at issue in the main proceedings, carried out by the operator of a search engine is liable to affect significantly the fundamental rights to privacy and to the protection of personal data when the search by means of that engine is carried out on the basis of an individual’s name, since that processing enables any internet user to obtain through the list of results a structured overview of the information relating to that individual that can be found on the internet — information which potentially concerns a vast number of aspects of his private life and which, without the search engine, could not have been interconnected or could have been only with great difficulty — and thereby to establish a more or less detailed profile of him. Furthermore, the effect of the interference with those rights of the data subject is heightened on account of the important role played by the internet and search engines in modern society, which render the information contained in such a list of results ubiquitous.

In the light of the potential seriousness of that interference, it is clear that it cannot be justified by merely the economic interest which the operator of such an engine has in that processing. However, inasmuch as the removal of links from the list of results could, depending on the information at issue, have effects upon the legitimate interest of internet users potentially interested in having access to that information, in situations such as that at issue in the main proceedings a fair balance should be sought in particular between that interest and the data subject’s fundamental rights… Whilst it is true that the data subject’s rights protected by those articles also override, as a general rule, that interest of internet users, that balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.”

This principle sharply divides public opinion. Concern has been expressed that the right to be forgotten could be misused and might lead, in effect, to censorship of the information that is available on the Internet. Criminal cases are invariably conducted in public. Information relating to people who are convicted of criminal offences may well end up on the ‘public record’, most frequently as a result of newspaper reports of cases that appear in the Courts. Those opposed to the “right to be forgotten” contend that access to this sort of information should not be prevented by restrictions placed on what can appear in the results of Internet search engines.

This is another area of the law in which two human rights come into conflict; the right to be forgotten is a dimension of the right to privacy and it conflicts with the right of freedom of expression (which includes the right to receive as well as to impart information). When disputes like this arise, it is ultimately for the Court to decide where the balance is to be struck in an individual case.

What about the UK courts?

The High Court is soon to decide this issue so far as the UK is concerned.

The Claimants in two cases before the Court (to be heard in February and March 2018) are both individuals (neither is a ‘celebrity’ or politician) who have previously been convicted of criminal offences, but both have now been “rehabilitated” under the Rehabilitation of Offenders Act 1974. One was convicted in the late 90s of conspiracy to account falsely. Over ten years ago, the other was convicted of conspiracy to intercept communications. Both complain in their respective claims that Google is continuing to return, in response to searches of their names, links to information about their respective convictions. Some of the links that are complained about are links to newspaper articles reporting the original criminal proceedings. The Claimants argue that the time has come for them to be entitled to have these entries removed from searches carried out on Google.

What is the High Court likely to say on this issue?

We simply don’t know for sure, but most commentators think that earlier EU decisions are likely to be adopted. But, whichever way the case goes, it is likely, ultimately, to end up before the Supreme Court, so it may be a year or so before we have any clarity.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Will home owners have to spend money before selling?

A government committee has suggested that home owners may have to spend money on making their homes more energy efficient before the can sell it.

The committee on climate change is calling for urgent action in order to meet the targets set on reducing greenhouse gas emissions and are looking at ways of encouraging homeowners to have better insulation. The options include low interest rate loans or discounts on stamp duty if a home is upgraded after purchase.
The committee’s head, David Joffe, said that the least efficient properties are the ones that give the most problems in terms of being cold and damp. He also called on housebuilders to publish the costs of heating and lighting their new houses when they are sold.

Photo by Joakim Honkasalo on Unsplash

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Is it Lawful to Hit a Child?

Laws that criminalise unlawful violence date back to 1861 and are used every day in criminal courts to support prosecutions. Despite what might appear to be an obvious legal position, the question is often asked as to whether, despite those laws, it is permissible to ‘smack’ a child.

The simple answer is that it is lawful to chastise a child by smacking, although the extent of that provision needs explaining in more detail below.

Perhaps surprising to many is the fact that the UK is only one of two places in the European Union that permits this state of affairs (the other being the Czech Republic).

This week the devolved government in Wales launched a 12-week consultation, with proposals to outlaw all smacking of children.

The minister for children and social care said:

“Our knowledge of what children need to grow and thrive has developed considerably over the last 20 years. We now know that physical punishment can have negative long-term impacts on a child’s life chances and we also know it is an ineffective punishment.

While physically punishing children was accepted as normal practice in previous generations, we know that it is increasingly being seen as less acceptable and parents feel less comfortable.

We want parents in Wales to be confident in managing their children’s behaviour without feeling they must resort to physical punishment. If there is any potential risk of harm to a child, then it is our obligation as a government to take action. Legislation was introduced many years ago to stop physical punishment in schools and childcare settings – now is the time to ensure it is no longer acceptable anywhere.”

The move in Wales follows similar developments in Scotland last October, which resulted in the children’s commissioners of Scotland, England, Wales and Northern Ireland calling for a ban on smacking children.

Attitudes to parenting practices have also changed. While physically punishing children was accepted as normal practice in previous generations, research shows parents today are increasingly using positive approaches which are proven to be more effective, while feeling less comfortable about using physical punishment. In 1998, for example, 88% of British adults agreed that “it is sometimes necessary to smack a naughty child” while in 2015 only 24% of parents in Wales supported this statement.

Despite this shift in attitude, at the moment there are no plans to change the law as it applies in England.

What does the law allow?

The law allows an assault on a child provided that it constitutes ‘reasonable punishment’.

Section 58 Children Act 2004 states however that this defence cannot apply to the more serious charges of violence such as assault occasioning actual bodily harm, or above.

What is ‘reasonable punishment’?

The concept of ‘reasonable punishment’ has its origins in Victorian times. The case that established the legally accepted definition was R v Hopley (1860).

In this case, a boy was beaten by a schoolmaster with the permission from the child’s father, which led to the death of the child.

During the trial, the presiding judge, Chief Justice Cockburn, stated that:

“A parent or a schoolmaster, who for this purpose represents the parent and has the parental authority delegated to him, may for the purpose of correcting what is evil in the child inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable.”

This case established in law reasonable punishment as a defence for those parents, carers or other responsible adults – such as teachers – who were charged with the criminal offence of assault on children.

The use of corporal punishment was commonplace in schools until the 1980s. From 1986, however, the UK Parliament increasingly restricted the use of corporal punishment, prohibiting it in all state maintained schools in 1987 and in independent schools in 1999. Its use was ended in children’s homes in 2001, Local Authority foster care in 2002 and in childcare provision in 2007.

The question of whether the punishment is ‘moderate and reasonable’ will be for a court to decide on the facts of any individual case.

It is fair to say, however, that any punishment that results in more than transient or trifling injury (leaves a mark or bruise for example), is likely to fall outside of this defence. It is therefore important than parents find other mechanisms to deal with children who might at times be very challenging.

How We Can Assist

Contact our crime team on 01323 430430 or email ask@warrens.law concerning any criminal law enquiry, our team of expert lawyers will be able to guide you through any criminal allegation, working with you to achieve the best possible outcome.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Divorcing couples consider private hearings

Since legal aid was cut for divorce related disputes in April 2013 the rise in people acting without legal representation had been huge. The issues of delays caused by court closures, legal aid funding reductions and more couples representing themselves has led to a huge rise in private hearings on divorce. Figures from the Ministry of Justice revealed that 36 per cent of private family law applications between April and June this year involved parties having no legal representation.

Couples are also resorting to -financial dispute resolution-FDR, a private hearing where judges give them an indication of what they could expect if they go to court, not surprisingly most then settle.

A report in the Times yesterday mentioned that Sir Paul Coleridge, a High Court family judge for 14 years who does arbitrations and FDR hearings, said: “The use of arbitration, binding and non-binding, is a no-brainer. It is quicker than the hugely overstretched court system, more convenient because the parties choose the time and place, more civilised because it is more informal and cheaper because it takes place earlier, before costs have rocketed”.

The usual route for most couples is the court system, however once the delays and costs become clear people are considering the options. The benefits that arbitration offers seems to include flexibility, speed of process and the ability to choose an arbitrator, as well as a private hearing.

The concerns must be a possible two tier system emerging with those able to pay having an advantage. The Times newspaper, along with the charity Marriage Foundation has launched a campaign with regard to reforming family law.

If you need help or advice regarding your divorce please contact our specialist family team.

Charlotte Warren, 13 December 2017
Family Law solicitor, Warren’s Law and Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Divorce and Stamp Duty

The law of Unforeseen Consequences (Part 2): when George Osbourne was Chancellor he wanted to control the buy-to-let market and so he introduced a 3% stamp duty surcharge on the purchase of a property which is not considered to be your home or principal residence.

The intention was to “cool” the-buy-to-let market which was considered to be detrimental to facilitating house purchases by first time buyers. However, it has also impacted upon couples divorcing because they have become subject to this surcharge as well.

If a Court allows one spouse to remain in the matrimonial home and the other spouse retains an interest in it the non-resident spouse will be assessed to the 3% surcharge if buying a new property which, depending on the value of that property, could result in a very substantial increase in the stamp duty payable.

The recent budget has indicated an end to this incongruity but the wording used in the budget suggests that it may not be sufficient for divorcing couples to make an informal arrangement between themselves and that a Court Order will be required for the exemption from the 3% surcharge to apply.

If you would like more information or guidance on this then please contact John Mullaney at Warrens Law & Advocacy on 01323 430430.

John Mullaney, 7 December 2017
Head of Conveyancing, Warren’s Law and Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Time to Test the Brakes

In December 2016 two men were convicted of manslaughter following an avoidable brake failure that resulted in the deaths of four people, including a young girl.

Neither of the men drove the vehicle, but they were ultimately responsible, as the haulage boss and mechanic. One was sentenced to 7 ½ years, the other to 5 years and 3 months imprisonment.

The case provides a stark reminder of the duty owed by vehicle operators, and one might have hoped that such cases would materially change behaviour.

A year on, it would appear that the situation has not improved as expected, and the Traffic Commissioners for Great Britain this week called upon operators to change their approach to brake performance testing, commenting that:

‘…despite the clear lessons from the Bath manslaughter case, operators are simply paying lip service to brake performance testing. In many cases, there’s too little recorded on the brake test to offer a meaningful assessment. In others, no information is recorded at all.’

Testing of vehicles has revealed that these failures not limited to a specific type of licence, size of the operator or a particular sector – it is across the board.

The guidance makes clear that every safety inspection must include a metered assessment of the braking performance of vehicles and trailers. It adds that a road test method to assess the brake performance for all planned safety inspections will usually be inadequate.

Where deficiencies in brake performance are identified, either during use of the vehicle or trailer or at the safety inspection, a measured brake efficiency test must be carried out. The efficiency test must confirm the brakes are performing satisfactorily before the vehicle or trailer can be considered as roadworthy.

What you should do now

Operators should carry out an urgent review of their brake testing regime now.

This should include an analysis of safety inspection records over the last 15 months, looking at whether the type of test and the information recorded is sufficient.

Operators must make sure their brake tests are planned in line with DVSA guidance and satisfy themselves that the vehicles and trailers running under their licence are roadworthy.

We Can Help

We can assist with any road traffic issue so if you need assistance in understanding your obligations, representation before Traffic Commissioners or a criminal court, contact Talia Martin or Tony Waller on 01273 733648.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Road Safety Week 20-26th November 2017 – Drug Driving

This week is Road Safety week and even the most careful and competent drivers can find that they have inadvertently broken the law.

Everyone knows that driving whilst under the influence is criminal offence, and that includes under the influence of drugs as well as alcohol. But what some people may not know is that the law against drug driving applies to commonly used prescription drugs as well as the outlawed ‘street’ drugs.

What this means is that if you take medication you could fall foul of the law.

What The Law Says

S.5A of the Road Traffic Act 1988 was introduced in March 2015 to tackle the problem of drug driving and since then convictions for the offence have been on the rise. Research conducted by the Department of Transport and released this year showed that in the first year alone there were nearly 8,000 arrests and an average of 4 convictions a day for the new offence. The new law states that it shall be an offence for a person to drive or attempt to drive or to be in charge of a motor vehicle on a road or any other public place with a specified controlled drug in their body, if the proportion of the drug exceeds the specified limit for that drug.

Prior to the introduction of this section the Prosecution were required to show that a driver was impaired by drugs in order to obtain a conviction. Now they simply need to prove that the person has exceeded the limit – in much the same way as they do for drunk driving.

Which drugs apply and what are the limits?

The limits for medicinal drugs are much higher than those that apply for illegal drugs and they are as follows:
Diazepam 550µg/L
Methadone 500µg/L
Oxazepam 300µg/L
Flunitrazepam 300µg/L
Amphetamine 250µg/L
Lorazepam 100µg/L
Morphine 80µg/L
Clonazepam 50µg/L
Temazepam 1,000µg/L

The limits that have been set for these drugs exceed normal prescribed doses, meaning that the vast majority of people will not be caught out. But if you are over the limit then you will have a defence if you can show that:

  1. The drug was prescribed for a medical or dental purpose
  2. The medicine was taken in accordance with the advice of the healthcare professional who prescribed or provided it and in accordance with the manufacturer’s instructions
  3. That possession of the drug before taking it was not unlawful

An issue may arise if you are given advice contrary to the instructions. The defence will not apply if you ignored any advice you were given regarding the amount of time which should elapse between taking the drug and driving. If your driving was impaired so that you were unfit to drive you can still be prosecuted under section 4 of the Road Traffic Act.

If you are charged with drug driving you will have to go to Court. You face a mandatory driving ban and potentially a hefty fine or even community service or a curfew. In more serious cases you may be at risk of a prison sentence. You should speak to one of our experienced advocates about what options may be available to you. Contact Talia Martin on talia.martin@warrens.law.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Stamp Duty

The Chancellor, in an attempt, as he said, to “revive the home owning dream in Britain” has abolished Stamp Duty for first time buyers on house purchases up to £300,000 and on the first £300,000 of first time purchases up to £500,000, for those fortunate enough to be able to afford this on a first time home. (The first £300,000 will be Stamp Duty free and the balance up to £500,000 taxed at 5%).

Properties in excess of £500,000 will not receive any relief at all.

The Stamp Duty exemption should make it easier for first time buyers to scrape together a deposit. However, without any wider Stamp Duty exemption to encourage more property sales further up the property chain, there will be no increase in the number of properties available to purchase. The net effect is therefore likely to be to push up property prices further, which will benefit house sellers at the taxpayers’ expense but not the first time buyer.

This analysis of the situation is the view of the Government’s own independent watchdog, The Office for Budget Responsibility (OBR), (an example of the law of unforeseen consequences?), and a root and branch reform of Stamp Duty right across the board would have had a better result.

John Mullaney, 24 November 2017
Head of Conveyancing, Warren’s Law and Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Sorry, can sometimes be difficult to say

But in criminal law, sometimes a simple act of contrition, genuinely felt and communicated, can alter a case outcome significantly.

A timely admission and expression of sorrow can make the difference between a formal resolution such as caution or charge, and the opportunity to persuade the police to consider an out of court community resolution.

Restorative justice is a popular out of court disposal and preferable to almost all other outcomes when guilt is not in doubt. Research shows that the process has benefits for both victim and offender.

Other out of court disposals such as driver awareness courses can also have an impact on an offender willing to address their behaviour; few leave undisturbed by the graphic images of a child hit by a speeding vehicle.

In court, it can sway a bench in some cases to impose a more lenient punishment, so we always work with clients to ensure mitigation is advanced adequately at all stages.

Of course, sorry in itself might not mean much, what are you sorry for, is it being caught, finding yourself before a court, or is it more than that – does it amount to genuine remorse?

This is an important question in sentencing terms as ‘genuine remorse’ is a mitigating factor in almost all sentencing guidelines and can make a substantial difference to the outcome.

The Oxford English Dictionary defines remorse as being:
‘A feeling of compunction, or of deep regret and repentance for a sin or wrong committed.’
A court will, however, be looking only for genuine remorse, and it is far from being a scientific exercise.

The Sentencing Council commented on this as follows:
“This factor appears in all Sentencing Council guidelines and is one that sentencers are adept at assessing. Sentencers sitting in court on a daily basis are alive to the ease with which ‘sorry’ can be said but not meant. Evidence obtained during the course of interviews with judges (during the consultation process) confirmed the way in which judges carry out this assessment; often the judges used phrases in conversation with us such as ‘genuinely remorseful’, ‘genuine remorse’ and ‘true remorse’. This confirms the Council’s view that the consideration of remorse is nuanced, and that all the circumstances of the case will be considered by the sentencing in deciding whether any expressed remorse is in fact genuine.”

In a recent lecture, a High Court Judge offered up these examples to illustrate genuine remorse:

  • Deliberate withdrawal from an on-going criminal enterprise.
  • Removing oneself from criminal associates or the sources of temptation.
  • Behaviour immediately after the offence such as obtaining medical aid.
  • Voluntary surrender and confession to the police.
  • Efforts to reform by way of, e.g. drug-rehabilitation or alcohol withdrawal programmes.
  • Return to education.
  • Assistance to the authorities in combating crime.
  • Voluntary restitution, payment of compensation without order from the court or restoring damaged property.
  • Less objective examples (but commonly seen) include:
  • Expressions of remorse in police interviews after arrest.
  • The impression of genuine remorse given to a probation officer, psychiatrist or psychologist when being interviewed for the purpose of preparing a report for the court before sentencing.
  • Letters of apology written by offenders to victims or the court.

How can we assist?

It is our job when representing clients to ensure that the best case is put forward, not just the usual mitigation offered by a guilty plea, but other aspects of the defendant’s character that shine a light on their true self.

People make mistakes, sometimes serious ones, but rarely does that alone define the real person.

We believe that carefully presented mitigation makes a real difference.

For assistance with any criminal matter, please contact Sarah Clarke, deputy head of our crime department at Warrens Law on 01323 430430.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Are Top Athletes Employees?

Jess Varnish was a cyclist who was previously part of the British Cycling team and received funding towards her training costs until it was controversially stopped last year. She raised issues around the treatment of athletes within the cycling team which resulted in the Cycling Independent Review to understand the culture within the world class cycle programme.

Varnish has now brought a claim against both British Cycling and UK Sport (which determines how sporting bodies operate) for sex discrimination, detriment suffered for whistleblowing, victimisation and unfair dismissal.

What makes the case interesting is that it raises the question about whether top class athletes such as Varnish are employees or not. In this case a claim brought under whistleblowing legislation will mean that any award will be significantly greater than standard claims for unfair dismissal. The other key point is that if she is deemed to have been an employee then her employer (either British Cycling or UK Sport, should have paid PAYE, national insurance and pension contributions on her behalf.

A measure of how seriously UK Sport is taking this case is the fact that they have sought to block the action with a strike out order for the case to be dismissed and also sought a deposit order and costs order against Varnish. If she fails in her claim the costs could bankrupt her however the cyclist has been advised that she may proceed with her claim with the judge rejecting all three orders and finding that the costs claim by UK Sport was overly aggressive.

The case is listed for April 2018 and it will be watched with interest by all sports governing bodies because of the potential implications of the relationship between funded athletes and their governing bodies being interpreted as that of an employer/employee.

James Rann, 13 November 2017
CEO of Warren’s Law and Advocacy, a law firm offering criminal and civil litigation advice to individuals and businesses as well as property and private client advice.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Something to CRoW about

The Countryside and Rights of Way Act 2000

This week is the eight hundredth anniversary of one of the longest pieces of legislation to remain on the statute books. The Carta de Foresta was sealed on 6 November 1217 and fundamentally changed the rights of the common man forever, arguably with more impact than the Magna Carta which was sealed two years earlier in 1215.

Until that time the forests were not deemed to be “common land” and therefore open to all and the Carta de Foresta, which was only repealed by the Wild Creatures and Forest Laws Act 1971 opened them up for all to enjoy. Historians suggest that as much as one-third of England was designated as forest and according to the Woodland Trust just 13% of the UK is now covered with trees, compared to the average European country that has 37%.

Another anniversary (almost) is The CRoW Act 2000, which received Royal Assent on 30 November 2000 –a teenager at only seventeen years old. An Act to make new provision for public access to the countryside; to amend the law relating to public rights of way; to enable traffic regulation orders to be made for the purpose of conserving an area’s natural beauty; to make provision with respect to the driving of mechanically propelled vehicles elsewhere than on roads; to amend the law relating to nature conservation and the protection of wildlife; to make further provision with respect to areas of outstanding natural beauty; and for connected purposes.

8 November 2017
Warren’s Law and Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Fireworks and the Law

As we approach Bonfire Night, the night sky is brought alive by the vibrant explosions of noise and colour, but as always, lurking in the background is a risk that failing to deal with fireworks safely and responsibly can bring you to the attention of the police.

Retailers who are thinking of supplying fireworks for the first time should ensure that they are sufficiently familiar with the complex rules that regulate the sale and possession of fireworks.

Contravention of the rules can result in substantial fines being imposed, or even a prison sentence. One of our crime experts Matt Beard explains the law.

Classes of Firework

There are four general classifications for fireworks:

Class 1 Indoor
Class 2 Garden
Class 3 Display
Class 4 Professional

Certain fireworks are banned entirely, such as mini-rockets, bangers, firecrackers, ‘jumping fireworks’ and air bombs. There are also fireworks referred to as ‘adult fireworks’, which are subject to a local authority licensing regime.

Importation of Fireworks

It is a criminal offence to import fireworks unless notice of the fact is given to HM Customs and Excise, and details of the importer’s name and address where fireworks will be kept.

Given the sizeable market in illegal and unsafe imported fireworks, it is always wise only to purchase from established, recognised retailers.

Sale of Fireworks

Retailers must display specified signage warning that it is illegal to sell fireworks to those under 18 years. Retailers should have robust training procedures in place to ensure that store staff know how to recognise under-age purchasers, and challenge as to age in appropriate cases.

There are licensing restrictions on the supply of adult fireworks.

Possession of Fireworks

It is an offence for a person under 18 years to possess most fireworks in a public place. There are limited exceptions for those employed in the business of firework displays and other relevant occupations.

The possession of category four fireworks is prohibited save for those employed in the business of firework displays and other relevant occupations.

Night-time Restrictions

With certain exceptions, such as Bonfire Night, Diwali, New Year’s Eve and Chinese New Year, the use of adult fireworks is not permitted during the hours of 11 pm – 7 am. Again, there are specific exemptions.

Noise Levels

Category 3 fireworks are restricted to a sound impulse sound pressure level of 120 decibels. It is an offence to supply any firework that contravenes this restriction.

Public Order, Arson, Violent and Other Offences

Fireworks are dangerous incendiary devices and in the wrong hands can cause serious injury to persons, animals and property. Many of these offences carry substantial criminal penalties.

Summary

Bonfire Night is a time for fun but can land the unwary in hot water with the police.

We can advise on any aspect of criminal law, so if in doubt contact Matt Beard on 01323 430430 or email; matthew.Beard@warrens.law

Matt Beard, 2 November 2017
Warren’s Law and Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Further changes afoot for the owners of antique firearms

In 2015 the Law Commission undertook an independent review of firearms legislation and published the report ‘Firearms Law – Reforms to Address Pressing Problems’. The report made a number of recommendations to close legal loopholes identified as being exploited by criminals and posing a risk to public safety, including the absence of a legal definition of the term ‘antique firearm’ in the Firearms Act 1968.

Police forces have raised concerns that different interpretations of the term ‘antique firearm’ may have undesirable consequences, such as permitting the possession of an old but still functioning and dangerous weapon without controls.

There is evidence that criminals take advantage of the absence of controls for antique firearms, while also sourcing ammunition that can be used with these weapons. Between 2008 and 2016 four fatalities were linked to obsolete calibre firearms and in more than half of cases of antique fire arms being recovered there was also ammunition capable of being used.

The Government made provision in the Policing and Crime Act 2017 to define an ‘antique firearm’ and to close the legal loophole identified by the Law Commission.

The provisions will clarify the law by enabling the Government to specify in regulations the lists of obsolete cartridges or propulsion systems of antique firearms to be covered by the definition. It is intended that these lists should be based on existing Home Office guidance on antique firearms, which is already referred to by many collectors, dealers and law enforcement partners. Specifying these lists in regulations will provide greater certainty as to the legal status of a weapon for collectors, dealers, law enforcement and the courts.

Anyone who holds a firearm for legitimate purposes and which has not been subject to controls historically needs to be ensure that they remain aware of changes that will be implemented on a regular basis as the review take place as responsibility for compliance with relevant laws sits with them.

Paula Bristow, 24 October 2017
Head of Crime, Warren’s Law and Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Government Signals Tough Sentencing Changes

Over the last few days, the government has announced proposals to introduce new offences and increase sentencing for a range of other offences. One of our criminal law experts, Anthony Waller explains the proposals.

Knife crime

Knife crime increased by 20% in the last year, prompting the government to look again at key legislation. Possession of a knife has in the same period increased by 23%. New laws will make it an offence to deliver to a private residential address a knife sold online. All future online purchases will have to be delivered to a collection address where the age of the purchaser can be verified.

Offensive Weapons

Possession of offensive weapons in a public place is already a criminal offence, but changes to the law will see some 19 items, including flick knives and push daggers prohibited in private places as well.

The government is proposing some limited defences to these possession offences, such as for cultural, artistic or religious use, and exemptions such as museum displays. Also, there will be a new definition of ‘flick knife’ to broaden the number of weapons that are classified into this category.

School Premises

It is already an aggravated offence to possess knives and offensive weapons on school premises. However, the definition of ‘school premises’ does not cover higher and further education establishments such as sixth form colleges or universities. This will be changed to ensure these institutions are also covered by the legislation.

Threats

The government intends to amend the existing offence of threatening with an article with blade or point or an offensive weapon set out in section 139AA of the Criminal Justice Act 1988.

The law currently requires the prosecution to prove that the defendant threatened another with the weapon “in such a way that there is an immediate risk of serious physical harm to that other person”.

The government is proposing to strengthen this offence to ensure that if anyone threatens another person with a knife the offence is committed when the victim reasonably fears they would be likely to suffer serious physical harm. This test will be based on how a reasonable person would respond to such a threat, and not whether the victim was objectively at risk of immediate serious physical harm.

Acid and Corrosive Substances

It is believed that violent attacks using acid and other substances is on the rise, such that a new offence is justified.

The Government proposes to create a new offence of possessing a corrosive substance in a public place. The proposed offence is modelled on the current offence in section 139 of the Criminal Justice Act 1988 of possessing a bladed article in a public place.

It is envisaged that similar defences to the knife possession offence would also apply to the proposed corrosive substance possession offence, such as, if the person could prove they had a good reason or lawful authority for having it in a public place.

Secondly, the government proposes to introduce a new offence preventing the sale of the most harmful corrosive substances to under 18s. This is intended to be similar to the existing knife legislation and is in response to the significant proportion of known offenders who are under 18. Introducing this offence would make it harder for under 18s to obtain products containing the most harmful corrosive substances that are of particular concern and which are being used as weapons to inflict life-changing injuries.

Firearms

The government has identified two particular types of firearms of concern: large calibre (0.50) rifles; and rapid firing rifles. Both types of firearms are currently available for civilian use under general licensing arrangements, but there are concerns about their potential for serious misuse and loss of life if they were to fall into the wrong hands. It is proposed that these two types of firearms should be subject to the stricter controls under the existing provisions of section 5 of the Firearms Act 1968, which prohibit a number of types of firearms from civilian use.

Driving Offences

It is proposed that the maximum penalty for causing death by dangerous driving, or causing death by careless driving while under the influence of drink or drugs be increased to a maximum of life imprisonment. If this change is implemented, it will lead to new sentencing guidelines being issued which will likely increase the typical sentence in all such cases. Very few cases would ever merit a sentence of life imprisonment. There is also a proposal to create a new offence of causing serious injury by careless driving.

This is likely to be one of the most controversial proposals as there is friction between the lower level of culpability and unintended harm, which of course can sometimes be significant.

Conclusion

The government appears to want to send out a tough message about certain types of criminal behaviour. It must be remembered however that sentencing is a fact-specific exercise where the personal mitigation of the defendant must also be considered.

In cases where a guilty plea is inevitable, or a finding of guilt has been made, it is our job to present to a court the best possible mitigation to ensure the lowest sentence possible.

17 October 2017

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

High-Risk Offenders – The Hidden Peril of Drink Driving

Many people convicted of driving with excess alcohol leave court with a pretty clear idea as to the length of their driving disqualification, but for a significant number, there is a shock further down the line.

Contrary to popular belief, there is no ‘right’ to hold a driving licence, merely by having passed a driving test, and not otherwise being disqualified. The Secretary of State for Transport has the right, where the circumstances justify it, to withhold a licence. One of the circumstances where this arises is after a drink drive conviction if the offender is deemed ‘high-risk’.

What is a high-risk offender?

The high-risk offender scheme applies to drivers convicted of the following:

  • one disqualification for driving or being in charge of a vehicle when the level of alcohol in the body equalled or exceeded either one of these measures:
    87.5 mcg per 100 ml of breath
    200.0 mg per 100 ml of blood
    267.5 mg per 100 ml of urine
  • two disqualifications within the space of 10 years for drink-driving or being in charge of a vehicle while under the influence of alcohol
  • one disqualification for refusing or failing to supply a specimen for alcohol analysis
  • one disqualification for refusing to give permission for a laboratory test of a specimen of blood for alcohol analysis.

If I fall into one of those categories, what does it mean?

It means that at the end of your disqualification period, your licence will not be returned.

How do I get my licence back?

There will need to be a medical assessment of your suitability to hold a driving licence; this will consist of:

  • questionnaire
  • serum CDT assay
  • any further testing indicated.

If a licence is awarded, the ’til 70 licence is restored for Group 1 car and motorcycle driving. Consideration may be given to a Group 2 licence.

If a high-risk offender has a previous history of alcohol dependence or persistent misuse but has satisfactory examination and blood tests, a short period licence is issued for ordinary and vocational entitlement but is dependent on their ability to meet the standards as specified. A high-risk offender found to have a current history of alcohol misuse or dependence and/or unexplained abnormal blood test results will have the application refused.

What does this mean in practice?

You need, if you are regularly consuming large quantities of alcohol (which may be much less than you believe it to be), to reduce your intake significantly, otherwise, this pattern of alcohol abuse will reveal itself when the blood sample is analysed (for liver function markers)

I wish I had been told this at the time?

Unfortunately, our experience shows that clients are not advised of this hidden consequence of drink driving.

Is there any appeal mechanism?

Fortunately, yes there is. We have a dedicated team of road traffic experts ready and able to assist you. If you would like further advice about this topic, then please contact our criminal law department on 01323 430430 or ask@warrens.law

3 October 2017

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Drones and the law

This article examines drones and the legal framework which governs their usage. It focuses on drones which are available to the public and looks at potential risks, the relevant law, one’s responsibilities as a drone owner and further caveats for particular types of drone use.

What are drones?

‘Drone’ refers to any object that can be flown without a human pilot. They can range from armed technologies used in military operations to smaller gadgets that can be purchased by members of the public. The latter category is the focus of this article. These items can be controlled remotely and may also be attached to a camera which provides a live-feed to the controller. They allow for educational, professional and leisure purposes. Various models are available which vary in size, speed, range and price.

When are drones a problem?

Drones become a problem when they interfere with other objects using the same airspace. They can present a problem for both military and civilian aircraft. Despite their relatively small size a collision could have disastrous consequences. Such incidents are more likely to happen when drones are flown too high or too close to areas where aircraft are taking off and landing frequently.

What are the rules?

If you have bought a drone for personal use, then you have some responsibilities relating to your use of that drone. Breaching these duties can result in prosecution. It is advisable to consult the Civilian Aviation Authority Air Navigation Order 2016, specifically Articles 94, 95 and 241. You can download the ‘Drone Code’ from the website dronesafe.uk. You must understand your essential duties as a drone owner, many of which are common sense:

  • know how to fly your drone safely, and do so within the law
  • understand that the operator is legally responsible for every flight
  • keep your drone in sight at all times – stay below 400ft
  • don’t fly your drone over a congested area
  • never fly within 50 metres of a person, vehicle or building not under your control
  • ensure any images you obtain using the drone do not break privacy laws
  • avoid collisions – you should never fly a drone near an airport or close to aircraft.

It is a criminal offence to endanger the safety of an aircraft in flight. If you break the rules, you could threaten life and also face prosecution, in some cases resulting in imprisonment or a substantial fine.

Are there extra rules when using drones for commercial purposes?

If you want to use a drone for commercial purposes, for example as an estate agent to take aerial video of properties for sale, then permission must be sought from the Civilian Aviation Authority. It is also expected that you will attend an accredited course which will test your knowledge of and competence with drones.

What about cross-overs into the military’s use of drones?

Any drone use completed for the Ministry of Defence is regulated by the Military Aviation Authority. Tasks such as surveys at height, photography and multimedia activities are covered by these provisions, and one should look at Regulatory Articles 1600, 2320 and 2321 for specific requirements.

The bottom line

So, drones can be fun and useful but come with their fair share of responsibilities. If you follow the principles highlighted above, you will be much less likely to fall foul of the rules and regulations governing this exciting new technology.

3 October 2017

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Environment Agency Clamping Down On Criminal Activity

People who illegally dump waste have cost land and property owners millions of pounds in the last year, according to the Environment Agency.

The financial impact, which relates to the cost of removing waste dumped in fields and empty commercial properties lawfully, could be even higher if land is contaminated or insurance premiums rise as a result. Dumped waste is also a major fire risk.

What is being done?

In a bid to reverse this problem, the Environment Agency is reaching out to property and land owners, commercial property agents, trade associations and local authorities. Their aim is to warn of the dangers posed by waste criminals and advise them, their clients and their members how they can better protect themselves. It is likely that this increased level of activity will lead to more criminal investigations and prosecutions.

Jamie Fletcher, from the Environment Agency said:

“Waste criminals operate throughout the country, offering to remove waste cheaply and then dumping it in fields or empty warehouses. They tend to move to new areas as enforcement agencies become wise to their activities. We know it’s only a matter of time before they target us again so we’re sending out a strong message: Waste criminals are not welcome here and we’re doing everything in our power to deter and catch them.

We can’t do it alone. We work closely with partners to share intelligence on illegal waste activity. And we’re encouraging everyone to do their bit: for property and land owners to be vigilant and better protect themselves and for all businesses, organisations and individuals to manage their waste responsibly, preventing it from getting into criminal hands in the first place.”

Land and property owners are advised to:

  • Check any empty land and property regularly and make sure it is secure.
  • Carry out rigorous checks on prospective and new tenants. Land and property owners have a responsibility to ensure anyone leasing their land/property complies with regulations. They may be committing an offence by allowing waste to be stored on land or property without the relevant permissions and could leave them liable to prosecution.
  • Be vigilant and report any unusual behaviour.

Change on the roads

In a related development, the Environment Agency and Driver and Vehicle Standards Agency (DVSA) have officially agreed to carry out joint operations across England to cut the transportation of illegal waste and to improve road safety.

The memorandum of understanding will see the Environment Agency and the DVSA using their combined enforcement powers to tackle the transportation of waste to illegal or poorly-performing permitted sites.

The agreement will involve:

  • DVSA staff located within EA teams to ensure a coordinated and effective approach,
  • sharing of information to increase the effectiveness of roadside enforcement on waste industry vehicles up and down the country;
  • providing enforcement teams with intelligence relating to waste industry operators
  • identifying high risk or illegal goods vehicle operators involved in waste transport
  • reducing the number of seriously and serially non-compliant waste industry vehicles on England’s roads.

Advice for businesses

There are thousands of commercial properties across the Country thought to be empty, which are owned by businesses and organisations, including fund management companies and local authorities.

The Environment Agency is also advising businesses and organisations of their responsibility to ensure their waste is managed appropriately. Anyone who produces, stores and manages waste is obligated to ensure waste does not cause harm to human health or pollution to the environment under Duty of Care legislation.

Waste crime diverts as much as £1 billion per annum from legitimate business and the treasury. Since April 2011 the Environment Agency has invested £65.2 million nationally to address it. Its specialist crime unit uses intelligence to track and prosecute organised crime gangs involved in illegal waste activity and to ensure any necessary action is taken against them.

Action you need to take

Environmental crime and regulation is a specialist area of law and whether you need advice about your legal obligations, or representation if facing an investigation or prosecution, our team of lawyers is here to provide it.

The penalties in relation to environmental offences can be very high, sometimes reaching the hundreds of thousands of pounds, and in some cases resulting in imprisonment. For example, last week United Utilities was fined £666,000, with costs of £32,000 after pleading guilty to pollution offences at Manchester Crown Court.

You cannot afford to leave your case to chance, contact Paula Bristow at our Brighton Office on 01273 733648 or ask@warrens.law to arrange an appointment.

28 September 2017

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Liar?

Liar, ITV’s new 6-part drama, is gripping the nation, with people already reaching conclusions as to whether Laura, played by the actress Joanne Froggatt (better known for her role as Anna Bates in Downton Abbey) is telling the truth when she accuses surgeon Andrew of raping her.

For most of us, this is highly watchable drama as we flip flop between whom we believe, our perceptions changed over time by the sophisticated script and device plots.

It is no surprise that some people have formed an opinion already, and recent research demonstrated that half of the jurors might reach a guilty verdict before even going to deliberate with other jurors.

We know that people are on occasion willing to change their minds, just as you might when the plot unfolds. It is vital therefore that a strong case is advanced from the start, laying a solid foundation for a successful defence.

Our Role

For our clients and their families, facing an accusation of rape or other sexual crime can be a horrendous experience. So, what is our role and how do we defend such cases?

Reactive and Proactive

We always start with a reactive approach. The complainant states they were drunk, our client states they were in fact sober. We entered the bedroom uninvited says one person, we were invited in, says our client, and so on.

We can build the start of a defence with this important work, but we do not have the benefit of the incident in question playing before us on a TV screen, with the truth revealed at the end.

We instead have only the competing versions, and it might feel as if it is simply one word against another, and often it is unless you seek further evidence.

It is a proactive approach to case preparation which makes a difference. We always ensure that:

  • All relevant witnesses traced.
  • Any CTTV evidence secured.
  • Forensic evidence analysed.
  • Background checks completed.
  • Details of false allegations pursued.

and even, as alluded to already in Liar, any psychiatric issues are explored.

We also understand the personal toll legal proceedings will take on you and your family, and offer a compassionate and reassuring voice at a time when the future may at times appear very dark.

Our Services

Warren’s Law and Advocacy Solicitors have decades of experience in defending cases of this type. Before entrusting your case to anyone else come and meet us, get a feel for our work ethic, and ensure you are confident that you are receiving the best defence possible.

You only get one chance to get this right, so the alternative is unthinkable. We offer private client services at affordable rates, and legal aid may be available.

So, if you are arrested for, or charged with any offence, call us on 01323 430430 to arrange an appointment, or email us, ask@warrens.law

22 September 2017

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

A Taxing Problem For Business

Laws relating to business can be challenging at the best of times, but when they could also land your company before the courts and facing crippling fines, it is best to act in advance and do all you reasonably can to put protections in place.

The provisions of the Criminal Finances Act 2017 are only summarised below; it will hardly surprise you to know that they are in fact much more complex, so you should take care to understand in detail your actual obligations.

We can offer a wealth of experience with any matters relating to business law. Contact Justin Rivett for information and initial legal advice.

A Taxing Problem For Business

Change Ahead

The main provisions of the Criminal Finances Act 2017 comes into force on 30th September 2017, and there are important things for a business to know.

New Provisions

While tax evasion is already an offence, currently there is no obligation on a company to take steps to stop another person engaging in such illegal activity. With a few exceptions, if you do not personally participate, you can stand idly by while another person offends. These provisions bring this situation to an end so far as certain aspects of taxation are concerned.

How?

The Act will render a business (which includes partnerships) liable to prosecution if a ‘tax offence’ is committed by an employee or other person performing services for the company (agents etc.).

To be guilty, the following must apply:

  • There has been a criminal evasion of tax (whether that resulted in prosecution or not).
  • An ‘Associated Person’ facilitated the commission of that offence (i.e. a person linked to your business).
  • A failure by the firm to prevent that facilitation taking place; This is a strict liability element; the business need not know that anything unlawful was taking place.

‘Associated Person’ means: ‘…an employee, a person acting in the capacity of an agent, or any other person who performs services for or on behalf of your company who is acting in the capacity of a person performing such services’.

The provisions apply in relation to both UK and foreign offences.

Is There A Defence?

Yes, if you can prove:

(a) That you had in place such prevention procedures as it was reasonable in all the circumstances to expect you to have in place, or
(b) It was not reasonable in all the circumstances to expect you to have any prevention procedures in place.

Therefore, your business needs to have reasonable safeguards in place to be able to try and prevent tax evasion.

What Is The Penalty?

Your company could face an unlimited fine. While there are currently no sentencing guidelines, we can reasonably anticipate these to be very large, in some cases measured in the tens of thousands of pounds and above. You would also need to try and measure the reputational and other damage (such as loss of future contracts) that might follow.

That Doesn’t Sound Good, What Can I Do To Protect My Company?

Your business will need to commit to policies and processes designed to prevent your employees and others committing tax facilitation offences. There is no ‘one size fits all’ policy toolkit that you can purchase off the shelf. To devise such procedures, you will need to:

  • Carry out a risk assessment.
  • Decide on what is a proportionate response to that risk.
  • Ensure top-level commitment within the organisation to implementing any policy/procedure.
  • Maintain due diligence.
  • Communicate the policy/procedures and train all employees/agents who carry out work on your behalf.
  • Monitor and review the policies and procedures to ensure continued effectiveness.

We Will Certainly Put This On Our ‘To Do’ List

While HMRC doesn’t expect you to have everything in place on 30th September 2017, it does have some ‘day one’ requirements, with HMRC stating in its guidance that:

‘We expect there to be rapid implementation, focusing on the major risks and priorities, with a clear timeframe and implementation plan on entry into force’.’

Help!

The provisions of the Criminal Finances Act 2017 are only summarised above; it will hardly surprise you to know that they are in fact much more complex, so you should take care to understand in detail your actual obligations.

22 September 2017

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Leaving a Linguistic Footprint

An insight into people’s identity has been revealed as a result of a cache of 1.7m emails that were put out on the internet by US regulators.

In 2001 the US energy giant Enron, at the time the 7th largest company in the US and with 21,000 employees, collapsed and as part of the investigations staff emails were reviewed and ultimately put online. These provided a rare opportunity for linguistics experts and show how the phrasing of emails can reveal something about us and our position in an organization.

The analysis showed that men in senior positions tend to forgo greetings and get straight to the point whereas in emails to a group of 10 or more people tend to adopt a more informal grammatical approach.

David Wright,a senior lecturer in linguistics at Nottingham Trent University, has recently published a paper in which he says that he can identify people to within 80% accuracy based upon how they word their emails. Women are more likely to write “for”, “hi” and “thanks” whereas men will favour “more”, “I” and “towards”. Interestingly lawyers have a tendency to use “no” and “under” more frequently – have our clients noticed this I wonder?

In age of instant communication it is easy to dash off an email without thinking about how it reads or even how it is received. Whereas our forebears used to craft their letters with a mind to the possibility that they may be published (in a good way) perhaps one should take a moment to stop and think a little about one phrases an email; after all like the employees of you never know who might read it and where it might be published.

James Rann, 25 July 2017
CEO of Warren’s Law and Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Victorian Laws on Will Writing Under Review

A consultation paper has been issued by the Law Commission on reviewing and updating the rules around making a will.

Currently 40% of adults die intestate, that is to say without a will, which means that their estate may not be distributed in accordance with their wishes. The Commission is concerned that there is a general lack of understanding around having a will and managing your affairs. For instance many people do not realise that marriage will revoke an existing will.

The paper is also suggesting that the current laws do not reflect modern day society and is proposing changes such as electronic wills and reducing the age at which you can make a will from 18 to 16. Professor Nick Hopkins, the law commissioner in charge of the project said “Making a will and passing on your possessions after you die should be straightforward. But the law is unclear, outdated and could even put people off altogether.”

James Rann, 17 July 2017
CEO of Warren’s Law and Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

In defence of defence

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled. Nor will we proceed with force against him except by the lawful judgement of his equals or by the law of the land. To no one will we sell, to no one deny or delay right or justice”

Magna Carta, June 1215

This, of course, is the cornerstone of British justice: innocent until proven guilty and the burden of proof is on the prosecution. As criminal defence lawyers we are often asked how we can live with ourselves since our job is to defend those accused of crimes. We go to great lengths to explain that an individual is only considered a criminal at the point of conviction following a trial. Until then, innocence must be presumed and every man and woman is entitled to a defence. This is the enduring reason why the British judicial system is admired worldwide.

The Press understandably makes much of prison sentences that are perceived to be too lenient, but they also report those cases of wrongful conviction. The wrongful conviction and subsequent hanging of 25 year old Timothy Evans for the alleged murder of his wife and baby daughter were, in fact, highly influential in the final abolition of capital punishment in the UK in 1965.

Evans and others who were failed by the system did, of course, have defence lawyers (Evans’s barrister being both uninspired and uninspiring), but often had police interviews that were not, as they are now, audio recorded. Legal representation at the police station is, rightly, a free service available to all and the police are now obliged to make every defendant aware of that right.

Even today, the police are blamed for errors leading to criminal convictions. The reality is that, without criminal defence lawyers available, far more defendants would be unjustly convicted, whether the eventual penalty is to lose their licence or their liberty. Either way the legal profession ensures that there is due process and individual rights are preserved.

It is for all the reasons above that, in the early 80’s, Rodney Warren of Warren’s Law & Advocacy, set up the first voluntary Duty Solicitor Scheme outside of London, in Eastbourne, creating a model that was duplicated nationwide, and giving all defendants the opportunity to which all men are entitled: a defence.

Warren’s Law & Advocacy has one of the largest criminal defence teams in the south east of England with offices in Eastbourne, Brighton and London. They have extensive experience of representing both individuals and businesses in a broad range of criminal defence matters, including SFO and HMRC prosecutions.

Maureen Hurley, Practice Manager
17 July 2017

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

A Higher Form of Intelligence

The Serious Fraud Office has announced that it used artificial intelligence (AI) software to review documents in the investigation in corruption at Rolls Royce.

The software was able to review up to 600,000 documents a day with greater accuracy compared to lawyers who can only review 3,000 documents a day. The result is that the review process is completed more quickly and at considerable less cost.

The software has algorithms built in to recognise documents that are legally privileged (i.e confidential between companies and their legal advisers) and looked for key words, the recipient and even the time of day that they were issued. The software is also sophisticated enough to spot documents that may be privileged and highlights them for review by a lawyer.

In this case both sides agreed to the use of the software and going forward it is likely that it will be used more frequently – particularly when investigation financial crime which typically involves large amounts of paperwork. Law firms are also starting to use this type of software as a way of removing the lower end drudgery work which then frees up their highly experienced lawyers to focus on the better paid work. Deloitte forecasts that it could lead to the loss of 114,000 jobs in the legal sector in the next 20 years.

Mark Bishop, professor of Cognitive Computing at Goldsmiths, University of London, said “AI could make significant advances in these fields in the coming years but it’s important it’s only used in an advisory role and not to replace human judgement”.

James Rann, 28 June 2017
CEO of Warren’s Law and Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Teams perform better than a collection of individuals

You have probably all heard this and may have experienced it for yourself either in a business or social environment.

The Times journalist Matthew Syed wrote about this in his column this week and referenced a study of medical students. In the study the compared the results of students who worked collaboratively with those who worked in isolation (so called silo workers). In the first year the collaborative workers earned lower grades, in the second they were comparable and thereafter were significantly better.

The article went on to make a number of salient points (it is always worth reading) but concluded on a very poignant note about the Young brothers. Both are top flight rugby players and Ben has declined an invitation to tour New Zealand with the British and Irish Lions this summer because his brother’s wife has been diagnosed with terminal cancer. It is more important for him to stay and support the “family team” than chase personal glory (and presumably financial gain) by going on tour. A lesson for us all?

Article from The Times, 10th May 2017

James Rann, 15 May 2017
CEO of Warren’s Law and Advocacy, a law firm offering criminal and civil litigation advice to individuals and businesses as well as property and private client advice.

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

Do we really need a Court Order when my ex and I have agreed our finances?

The short answer is, yes. If you do not have a Final Financial Order approved by the Court, there is always a risk that your ex can make a claim against you. Any claim made can even include assets that did not exist at the time.

In a recent Court decision (Briers v Briers (2017) EWCA Civ 15), the Court clearly states that it is not possible to reach any final agreement without approval of the Court.

Background to the Case

The parties married in 1984 and separated in 2002 (18 years). The Decree Absolute (divorce) was pronounced in 2005. There was no Court Order concluding the parties’ financial affairs. In 2013 (11 years after separation), the wife issued legal proceedings applying to the Court for a Final Financial Order. The husband relied on an agreement which was entered into by both he and his wife in 2005 following a joint meeting with her Solicitor which he thought finalized the financial matters.

The first decision of the Court in May 2015 found that there had not been a full and final settlement and that there was no 2005 agreement as alleged by the husband. The Court at that stage decided that the wife had made it clear that she would require full financial disclosure in advance of agreeing any final settlement and this disclosure had not taken place.

As a side note, it is a requirement that both parties provide full and frank disclosure of all their financial affairs in proceedings for a Financial Order in order to make any Final Order binding.

The Appeal

The husband appealed the initial decision which was principally based on two issues as follows:

  1. An alleged agreement in 2005 and the husband maintained that agreement was final.
  2. Delay – the husband argued that the Trial Judge had failed to have sufficient regard to the wife’s delay in bringing the claim and the lack of any cogent explanation for that delay.

In answer, the Court stated the following:

  1. Whether the agreement in 2005 was binding is a question of fact. The Court found that the wife’s acceptance of the proposed deal was conditional on the husband’s full, frank and clear financial disclosure. The Court made it clear that in the absence of this full disclosure, it would be enough to defeat the appeal.
  2. In respect of delay, this case demonstrates that significant delay in making any claim is one of the major factors in play for the Court to consider in any subsequent assessment and it is an additional factor that the Court must take into consideration but it is certainly not determinative of the issue. It may lead the Court to apply a discount to any award given to the wife but it certainly does not eliminate any claim. Further, none of the authorities in this area of law suggests that sharing non-matrimonial post separation accrual of assets is excluded from any award that may be made.
Conclusion

It seems clear from the facts of this case that Mr and Mrs Briers had agreed what was to happen with their financial affairs on their divorce and it was this “agreement” that was relied upon by Mr Briers. Neither of them felt that they needed to do anything more with regard to their financial affairs. This case demonstrates clearly that the Court will retain legal authority to make a Final Order in financial proceedings between husband and wife on divorce. Regardless of any agreement the husband and wife reached between themselves, the ultimate decision rests with the Court. In this case, no such Order was obtained. 11 years later, an Application was made by Mrs Briers for a financial award. In the intervening period, Mr Briers had accumulated many business assets. It is understood that his business assets were worth in the region of £10m. The husband (11 years later) was ordered to pay to the wife a lump sum of £1.6m and to transfer to her 25% of his pension.

The lesson to be learned is that even after divorce, any financial claim between husband and wife continues to exist until you receive and/or obtain a Final Order of the Court.

The only way Mrs Briers could not have made a claim following divorce is if she had remarried. This is often referred to by lawyers as the “remarriage trap”.

We recommend that you seek independent expert legal advice, even if you have already divorced. If you wish to make a financial claim Warren’s Family Law can assist you in doing so.

Paul Summerbell, 5 May 2017
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.

“Trapped in a loveless marriage”

Divorce – Unreasonable Behaviour

This is how the Guardian Newspaper described the case of Owens v Owens ([2017] EWCA Civ 182). Essentially, the issue revolved around the legal interpretation of “unreasonable behaviour” as the basis for a divorce.

This was a decision of the Court of Appeal in March 2017 from a previous decision of the Central Family Court to refuse to grant Mrs Owens a Decree Nisi of divorce. The original decision was that even though the Court found the marriage had broken down and the prospects of reconciliation hopeless, the wife did not satisfy the legal requirements to allow the court to make a finding of unreasonable behaviour on behalf of Mr Owens.

The Facts of the Case

This is not an unusual case. Husband and Wife married in 1978 and had two adult children. They separated in February 2015. It was accepted that the wife was carrying on an on and off affair which began in November 2012 and ended in August 2013. The original divorce petition was filed on 6th May 2015 and made the following allegations:

  • That the Respondent prioritised work over home life including missing holidays and family events.
  • During the latter years the Respondent failed to provide love, attention or affection towards the Petitioner leading her to feel unappreciated.
  • The Husband’s mood swings caused frequent arguments which were distressful and hurtful to Mrs Owens
  • The Husband was unpleasant and disparaging towards the Petitioner leaving her feeling upset and embarrassed.
  • As a result of the Husband’s behaviour they lived separate lives under the same roof and had done for many years; not sharing a bedroom for several years.
  • In February 2015 Mrs Owens moved out into rented accommodation.

The above particulars are typical of many divorces based on unreasonable behaviour and are designed to achieve a divorce for Mrs Owens (the Petitioner) without antagonising Mr Owens (the Respondent). Instead of Mr Owens accepting the particulars he chose to defend the proceedings.

The Law

The Court starts with legislation and Section 1 of the Matrimonial Causes Act 1973. Mrs Owens must demonstrate that her marriage has broken down “irretrievably”. Proving that a marriage has broken down “irretrievably” depends upon establishing one of five facts namely:

  • Adultery
  • Unreasonable behaviour
  • Desertion for a period of at least two years
  • That the parties have lived apart for a continuous period of two years and both parties agree to the divorce proceeding
  • The parties have lived apart for a continuous period of five years regardless of consent.

This divorce concerned “unreasonable behaviour” (2 above).

The Court is therefore involved in an enquiry (so far as it reasonably can) into the facts alleged by Mrs Owens and Mr Owens. Obviously, in an uncontested divorce, which is the usual type, the Court does not have to engage in this exercise.

The approach that the Court must take is as follows:

  • To decide whether Mr Owens has so behaved that it is unreasonable to expect Mrs Owens to live with him
  • In order to decide that, it is necessary to make findings of fact as to what Mr Owens actually did, and findings of fact as to the impact of that conduct on Mrs Owens
  • The cumulative effect on Mrs Owens of that behaviour.

In carrying out this exercise the Court must ask itself what any right thinking person looking at the particular Husband and Wife might think and whether one could reasonably be expected to live with the other taking into account all of the circumstances. This includes the respective characters and personalities of the parties concerned.

Difficulties in this area of law arise, as pointed out by the Court, because of the objective and subjective nature of the tests. For example, if the marriage is unhappy a particular piece of “conduct” may have more impact and be less “reasonable” than exactly the same conduct if the marriage is happy. In other words, what may be regarded as a trivial disagreement in a happy marriage could be salt in the wound of an unhappy marriage.

This concept is further complicated by the passage of time. The statute is dated 1973 and many changes in society have taken place since that time. By way of an analogy the Court stated the following:

“The concept of a vehicle has the same meaning today as it did in 1800, even though it includes methods of conveyance which would not have been imagined by a legislator of those days. The same is true of social standards. The concept of cruelty is the same today as it was when the Bill of Rights 1688 forbade the infliction of “cruel and unusual punishment”. But changes in social standards mean that punishments which would not have been regarded as cruel in 1688 will be so regarded today.”

Thus, the words “cannot reasonably be expected” must be addressed by reference:

“To the standards of the reasonable man or woman on the Clapham omnibus: not the man on the horse-drawn omnibus in Victorian times”.

The Grounds of Appeal

In broad terms Mrs Owens grounds of appeal from the refusal to grant her divorce in the original decision were as follows:

  • The Court failed to make essential findings of fact as to the Husband’s behaviour and the impact upon the Wife
  • The Court failed to undertake any proper assessment of the Wife’s subjective characteristics
  • The Court failed to undertake any assessment of the cumulative impact on the Wife of the Husband’s behaviour
  • The Court failed to apply the law properly to the facts.
  • The Court failed to take into account the Wife’s rights under Articles 8 and 12 of the European Convention (Article 8- Right to a Private Family Life, Article 12- Right to Marry)

There then follows a description of the Court of Appeal’s role in hearing appeals and the reasons why the original decision to reject Mrs Owen’s claim that she should be divorced was made and gives a brief history of divorce law. The case concentrated on the selection of allegations that were brought to the Court of Appeal for examination and, in the writer’s view, places too much emphasis of the alternative remedies available to Mrs Owens under the present law. In other words, if she waits until February 2020 “assuming that she and her Husband are still alive” she will be able to petition for divorce on the basis that the parties have lived apart for a continuous period of five years regardless of consent.

In short, the Court of Appeal in assessing the original Judge’s decision confirmed that he was in the best position to consider the case having read all of the papers and heard evidence from the parties under cross-examination. The Appeal Court rejected the idea that the original Judge was “plainly wrong”. Finally, that the original Judge could not be criticised for the findings of fact that he made which essentially was critical of Mrs Owens.

The Current State of Divorce Law

Under current divorce law there are five facts which need to be proven in order to obtain a divorce. Two of them (adultery and unreasonable behaviour) involve “blame”. The remainder (no fault) rely on periods of separation and/or desertion of two and five years respectively. The issue in 2017 is whether it is appropriate for “blame” to be a part of divorce law.

The current state of divorce law exposes clients to the risk that following this decision those seeking a divorce will feel obliged to outline stronger and more challenging allegations (Particulars) in their divorce petitions. This leads to further acrimony which overspills into other areas of family law particularly children and financial matters. Many family lawyers, particularly those members of Resolution (formerly the Solicitors Family Law Association) recommend to petitioners not to put in the Petition every allegation of unreasonable behaviour and, in so doing, seek to produce more neutral particulars or allegations of unreasonable behaviour on the basis that to do so creates the acrimony that has already been referred to. It is a matter of common sense that the more contentious the allegations of unreasonable behaviour are, the more acrimonious the parties feel towards each other and the more damage is done to any ongoing relationship, particularly where children are involved.

As has already been mentioned, Mrs Owens does have remedy available to her in the sense that if she waits until 2020 she can get a divorce based upon five years separation regardless of consent. However, she will require her Husband’s consent to divorce after two years separation. This will require a presentation of a fresh petition and involve the parties in further expense. It is also worthy of comment that the Court of Appeal have forced these parties to remain married in circumstances where the worth of the marriage must be questioned.

Reform – Divorce Law

Resolution, an organisation for family lawyers, on 24th March 2017 stressed that this decision underlines the urgent need for no fault divorce to be revisited. The purpose behind this campaign for a reform of the law in this area is to reduce conflict and support separating couples to resolve matters amicably rather than the increase in acrimony that will inevitably result from the decision in the case of Owens.

On the other hand, there is the issue of marriage itself. What value does society place on marriage? Those who choose to marry separate themselves from those who do not and there are certain tax advantages and no doubt social benefits from the status of marriage. Perhaps we should make it more difficult to marry? Perhaps the elements of adultery and unreasonable behaviour should be removed from the statute book and the remainder of the five facts (desertion, two years separation and five years separation) be reduced. All these factors are, in my view, rightly open for modernisation and current debate with a view to creating no fault divorce.

From the writer’s perspective I would have hoped that the mere fact of defending this divorce for as long as Mr Owens did and necessitating the expense involved is such that the litigation itself could be seen from the Court’s perspective as unreasonable behaviour on behalf of Mr Owens in circumstances where Mrs Owens is perfectly clear she wishes this marriage to end. The purpose in keeping this couple married must be open to question in these circumstances and I submit that the mere fact of the litigation, its duration, its cost, is, in itself, unreasonable behaviour.

Paul Summerbell 27.03.17
Warren’s Law & Advocacy

Disclaimer: While we do all that is possible in terms of ensuring its accuracy, this blog contains general information only. Nothing in these pages constitutes legal advice. You need to consult a suitably qualified lawyer from the firm on any specific legal problem or matter.