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LEGAL UPDATES
It is essential for all police station representatives to keep up to date with the law. However, we are not the best or most comprehensive legal resource on the web and nor do we aim to be. Below are a few cases and bits of legal information that we think all reps should have at their fingertips. Feel free to mail us with any cases you think are essential reading.


Bail Act Update

New Bail Arrangements (Policing and Crime Act 2017) come into force on April 1st 2017 but are being rolled out earlier by some forces.

The aim of the new bail rules is to put fewer people on bail and for a shorter period. Clients are often left languishing on bail for months or even years before charge. The intention is to improve decision making and reduce distress and injustice for individuals placed on bail.
  1. Applies to Pre-Charge Bail only
  2. Presumption of no bail unless it is necessary and proportionate
  3. Bail needs to be authorised by an inspector or above
  4. 28 day maximum
  5. Extendable up to three months where authorised by a superintendent
  6. More than three months with judicial authorisation. A decision by a single justice of the peace on the papers will suffice.
  7. In exceptionally complex cases it will be possible to extend bail administratively to a total of six months before seeking judicial authorisation.
  8. Legal representatives must be informed and all representations must be considered.
  9. Bail Conditions can still be imposed
  10. CPS or Police must inform clients promptly in writing when a case is concluded.
In summary you need to be aware that most clients will now not be bailed while an investigation continues. In effect where the police know a clients address they will simply ask them to attend a police station for charge or further interview rather than giving a specific bail date.Its worth noting that the police can arrest a client in order to charge them. But a further interview without new evidence would be problematic.

Where bail is granted, conditions may still be imposed, but they must be necessary and proportionate. If the conditions are breached clients can still be arrested, although the breach will not in itself be an offence.

The CPS and Police will have a duty of Notification of Decision. A failure on their part notify the client when a decision has been made to conclude the investigation and not to prosecute has led to distress and injustice. The existing statutory duty has been strengthened, and the notification must be made promptly and in writing. Cases will as ever not proceed if there is insufficient evidence and no realistic prospect of conviction and public interest must always be taken into account where appropriate.

Read More:
Solicitors Journal
Kingsley Napley
Criminal Law & Justice Weekly
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CPD

Continuing Professional Development (CPD) has changed and you no longer need to get a certain number of points. Basically its now all self-assement. You have to review your strengths and weaknesses and then make a plan based on the training you think you need. Finally you keep a record of the development you undertook along with the reasons and its effectiveness. The SRA guidelines are below. Its all a bit wholly but its a pretty sensible approach.

SRA Competence Guidelines: sra competenceSRACompetence Toolkit: sra toolkit

Our Suggested Proformas are below. If you have a better one do please send it to us:

CPD Log:

 pdf   docx   odt


CPD Plan:

 pdf   docx   odt


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CRM e14 and Legal Aid Forms

Legal Aid Applications now only require you to complete the e14. No more CRM 14 and 15.

We will be posting a more detailed guidance note soon but you can take a look here:

www.gov.uk/guidance/legal-aid-eforms



CRM e14
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Mileage Claims

The things every rep needs to know about milage claims:
  1. Outside of office hours you can claim up to 45p for mileage. Mileage payments up to 40p are taxfree. Everything over 40p is taxable as income.

  2. Inside office hours Mileage is the distance from the instructing solicitors office to the venue or the actual mileage, whichever is the shortest. The expectation is that you will use public transport. You can still use you own car but payments are capped at 25p per mile. To claim 45p per mile you will need to show a justification. The Criminal Bills Assessment Manual gives the following reasons:

    1. Getting to the station within 45 minutes.

    2. Security & Confidentiality: sensitive material that you carry must be safe from interference or theft.

    3. Carrying large numer of bulky documents.

    4. No public transport available.

    5. Use of a private motor vehicle was otherwise reasonable

  3. The LAA are trying to crack down on inflated or spurious travel claims. They are being a bit nutty and are querying even very small claims. Invoices & receipts should always be produced in support of claims for travel expenses. Under the contract, claims for for travel of up to £20 do not require receipts but even those are being queried so it is best to keep all reciepts with your notes.

Below is a copy of the Criminal Bills Assessment Manual which you will find a terrific and thrilling read. Take a look at s3.9 Travel and Waiting. There are three versions but they are all identical just in different formats. If you can't open one then try another. If you cannot open any of them or need them in a different format please feel free to get in touch:

 pdf   docx   odt
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Example s9 Statement

Occasionaly you will be asked to provide a s9 statement. Here is an example to use as a template. They are all identical but in different formats. If you can't open one then try another:

 pdf doc odt
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Seeing Co-Defendants Before Interview

An interesting case that confirms that where you have two clients you should consult with them both before going to interview.

As we all know the police will often attempt to prevent you doing that. This case is a handy one to have in your bag. See both clients before going to interview!

McDonagh v The Chief Constable of Leicestershire

The judgement in McDonagh v Leicestershire reaffirms the position that the police cannot interfere with a solicitor's prerogative to attend each of his clients whenever necessary to do so. The police cannot place a condition upon that right. They cannot insist that a co-accused must be interviewed before attending another client involved in the same investigation.

The police are often under the misapprehension that they can prevent us from attending a co-defendant first. So an office may say you cannot talk to Client B until they have interviewed Client A. This was never a police power. It might be helpful to keep this authority handy.
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Conflict of Interest Guidance
A rather good guide on conflicts of interest: here
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Handy Resource for Juveniles in Custody
This is a very handy site for information on juveniles in custody. When it comes to dealing with juveniles it is fair to say that we are generally not as clued up as we ought to be.This site is well worth a look: www.youthjusticematters.info/
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Drugs Extensions and X-Rays
Under the s152 of the Drugs Act 2005 there is provision for extended detention of suspected drug offenders.The police have the same powers as HM Customs. On application to a magistrates' court a detainee can beheld for up to 192 hours so that any swallowed items can be seized.

The police can also authorise the use of x-rays but this requires the consent of the detainee. Withholding consentmay lead to a negative inference being drawn.
Click here for a Handy Guide from Kent Police
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17yr Olds Need Appropriate Adults
The High Court has found that the PACE provisions for juveniles should apply to those under the age of 18. The UN Convention on the Rights of the Child defines a child as anyone under 18. It would be sensibleto make the appropriate representations for any clients afffected.
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KEEPING UP TO DATE:
One of the best ways to keep up to date is to subscribe to the e-mail updates provided CrimeLine. The emails are written by Andrew Keogh. He now has over 12,000 subscribers including criminal lawyers, judges and academics. Each issue provides legal updates including the latest cases, legislation and news. Best of all its FREE!. Click here to sign up or point your browser at www.wikicrimeline.co.uk. The CrimeLine CPD scheme is also well worth checking out.
 
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MOBILE PHONES IN CUSTODY:

ACPO have come to the conclusion that there is a presumption that solicitors hang on to their mobiles in custody. That does not mean that the custody sergeant has been over ruled. The sergeant can still refuse to let you keep your mobile but he does at least have to justify himself and explain his reasoning. Our opinion is that the rep is only in custody to assist the client. If the custody officer demands your mobile then you should hand it over. But if you want to argue the matter this is an essential document to keep in your brief case.


Read the full text here: ACPO Mobile Phones
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VOLUNTARY ATTENDANCES:

Everyone should carry a copy of this case, Richardson v Chief Constable West Midlands. It makes plain that on a voluntary attendance the police cannot presume to arrest. They must consider a voluntary interview. PACE clearly states that the police need to establish the necessity for an arrest. Without a compelling reason like DNA or fingerprints at the scene of a crime there is unlikely to be such a necessity and voluntary attendances should be dealt with by way of a voluntary interview.


Read the full text here: Richardson v West Midlands Police
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TWO FIXED FEES:
In order to claim two fixed fees, the rule of thumb is whether there are two distinct matters and two attendances. These cases are easily spotted if they would attract two LA orders or have two distinct police disposals. There is a great deal of confusion surrounding this issue. Hopefully, we can try to make the position clear.
You can claim two bills for one job but it is now much more difficult than ever. Most firms are simply not claiming second bills, which is a shame as they are entitled to them. Basically, you now need to attend on two occasions to claim two bills unless there are two very obviously different matters being dealt with.

THE CRIME LINE VIEW:
I am not wholly convinced by the Crime Line view on this but you can view it HERE.

THE RULES:
Under the current system the basic rule is that if the matter would attract two distinct legal aid certificates then the matter should attract two bills. Two bills can be claimed where there were two distinct disposals. Where one matter is bailed and the other charged that attracts two bills but only if the bail is attended by the rep. In order to attend the firm will need to justify its attendance. If one of the disposals is NFA or a caution then it is still treated as one matter. If a client is charged and then interviewed for further matters (whether that is as a post charge interview or a whole new matter) then that is also a new bill and two attendances would not be required. These rule are not uniformly applied across England & Wales.

THE NEW RULES:

The LSC guidance can be found here:


More than one Investigation
  • 9.82 If a Client is subject to an Investigation for which a Police Station Telephone Advice Fixed Fee is claimable and a further Investigation(s) in relation to an arrest or warrant for breach of bail is commenced at the same time, you may make only one Claim for Police Station Telephone Advice in relation to all Investigations.

  • 9.83 If you represent a Client at the Police Station, and that Client is under investigation for a number of different offences, the starting point is that you may only claim one Police Station Attendance Fixed Fee for that Investigation. You may claim more than one Fixed Fee in circumstances where your Client has genuinely separate legal problems requiring separate advice. A file note should set out your justification for this.

  • 9.84 If a Client is bailed to return to a Police Station, that is a continuation of the same Investigation.

  • 9.85 If a Client is charged with an offence, and bailed to return to the Police Station to be investigated for another offence, the attendance on that return date entitles you to claim another Fixed Fee.

  • 9.86 If you advise more than one Client during the course of a single Investigation, one Police Station Attendance Fixed Fee may be claimed

You should also note:

  • 10.68 Where the proceedings involve more than one offence, the definition of Case consists of three independent elements or tests. One or more of the following three tests will need to be satisfied to determine whether a Claim for a single Standard Fee, or a whether two or more Standard Fees may be claimed. If the answer to any of one of these tests is "yes", then only one Standard Fee may be claimed:

    (a) Are the charges or informations preferred or laid at the same time?
    (b) Are the charges or informations founded on the same facts? The test here is whether the charges have a common factual origin.
    (c) Are the charges or informations part of a series of offences? The test here is whether the offences exhibit some similar feature which would allow them to be described as a series of offences.

  • 10.69 For the purposes of the definition of a series of offences, a breach of a community penalty or other court order must be treated as an offence. If the defendant is before the court for other reasons, then no separate Standard Fee payment will be made for breach proceedings, irrespective of whether there is any link between the breach proceedings and any other proceedings being heard at the same time. If breach proceedings are heard alone then they will attract a separate Standard Fee.

SUMMARY:
Two bills can still be claimed but generally only if there are two attendances. The second needs to be justified. Normally that justification would be that the client is vulnerable or you could not get the determination of the case in advance from the police.

A word of warning: although you may think a second bill is appropriate your instructing solicitor may not actually claim it even though they agree with you in principal. Much of a firm's billing is down to a firm's relationship with the LSC. In any event the firm has only 48 hours to obtain the second DSCC reference number so you should always talk to your instructing solicitor and get them on board first.

Hopefully that answers your question in a clear as mud sort of way!

If you need any more help please feel free to mail me with the details of the case. You can also go to the criminalsolicitor.net forums and ask the community. The police station or billing forums are particularly good and the users tend to be very helpful.
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