Month: August 2017

Free Initial Consultation – Stuart W Stevens

Well, of course, one of the other benefits is that if you do come to someone and you don’t know whether you have got a case, most people, most barristers I shall say who do Public Access work and are Public Access qualified will sit down and give you a free consultation at the beginning just to access whether you’ve got a case and give you the initial advice. In many occurrences and instances, people will come to a barrister, say “ Do I have a case?” and after looking at it, examining it, they may not have a case. It is one of the first steps in any event. If you are on the fence about whether or not to bring a case, why not use the 15 minutes, half an hour, even an hour of discussions just to see whether that is the case, you can continue with that.

Understanding Inquests, with Stephen Harvey QC – ShenSmith Barristers

 

What is an inquest?

Inquests and public enquiries are unlike ordinary court hearings, because, as their name implies, they are inquisitorial proceedings, whose primary purpose is to investigate a situation and to arrive at a conclusion. Whether that conclusion concerns the cause of someone’s death in the case of inquest, or a government appointed inspector’s recommendation to a government body, in a relation to a matter of public interest.

Why are inquests held?

Inquests are held in order to establish the cause of death in situations, where the death are not natural causes. Those who become involved in inquests are obviously the bereaved of the person, who has very sadly died, and the person who may be found have been wholly or partially responsible for that death. For example, the driver of the car involved in an accident, in which the decease died. Whichever side the individual is on, they will undoubtedly have a vested interest in the outcome; whether it’ll be an inquest or enquiry, the adversarial skills of an experienced barrister in cross-examining witnesses and making speeches (what lawyers call submissions) to the coroner in an inquest, the inspector of an enquiry, can make or break the case.

Can I bring a barrister into an inquest?

The huge advantage of being represented in either type of the hearing is that the experienced advocate can bring a professional and objective detachment to the case; unaffected by understandable emotion affecting those, who are personally involved, and unaffected by any personal agendas. The independent and experienced advocate is able to put the most persuasive case before the hearing to the very best advantage of the side that he is representing. It cannot be overstated that effective representation during the course of the inquest in particular, can be pivotal if not determinative as to the likelihood of any subsequence proceedings, particular of a criminal nature.

Can an inquest lead to a prosecution?

If a prosecution does follow, then the way which the evidence unfolded and was addressed before the inquest, can itself have a very real and direct bearing upon any subsequence trial. There may also be consequential civil claims by the estate of the decease person, or an injured employee who’s seeking damages. In both inquests and enquiries, continuity of representation is obviously a vital element. And if the case becomes a criminal prosecution, it will involve considerable adversarial skills being required before the jury.

How can I prepare for an inquest?

I have the resources of a team of highly experienced investigators from a variety of backgrounds, who can assist under my direction with the preparation of any case that goes before an inquest. I can assist you with the selection and briefing of any necessary experts that are required.

Caught speeding at an ‘excessive’ speed? Here’s what you can do to avoid or, at least, minimise the length of a ban.

Since specialising in the defence of road traffic prosecutions the enquiries I most commonly receive go something like this:

speedometer and speeding‘I have been caught speeding at 100 (plus) mph. Can I avoid a ban?’

 

Consequences of speeding that you need to know:

1. The Bad News: The Consequences

driving licence points

  • Penalties for speeding include fines and either the endorsement of your driving licence with penalty points (3-6) or disqualification
  • Your insurance premiums over the next few years may well increase (by a significant margin if you are banned)
  • Penalty points endorsed on the occasion of your sentencing will be added to any other points endorsed for offences committed within 3 years of each other; if the total reaches 12, you will be liable for a ‘totting’ disqualification of a minimum of 6 months (unless you can establish ‘exceptional hardship’ in which case there is a discretion not to disqualify)

2. The Good News: You can mitigate the offence so as to avoid, or, at least, minimise the length of a ban

“Don’t rule out pleading guilty to a speeding offence!” despair-unfair-dismissal-ShenSmith-Barristers

 

  • Indication of an early ‘Guilty’ plea helps to establish remorse
  • Set out your mitigation carefully (first in relation to the offence and then in relation to your personal background)
  • Where possible obtain independent evidence (that you can show the court) in support of your mitigation
  • Consider taking a driving course to establish that you have learned lessons in advance of your sentencing hearing (there are short courses available aimed at changing attitudes to speeding). Production of a certificate to prove you have undertaken such a course can be beneficial.

3. Here are some commonly encountered ‘don’ts’ that do not usually go down well with the court

  • Obtaining a reference from someone (who was not present at the time of the commission of the offence) that says you did not speed deliberately – (a sure way to annoy the court and, in any event, speeding without realising it is worse than doing so deliberately as it shows lack of attention)
  • Claiming that you are a skilful driver who had full control of the vehicle – (this tends to make the court feel you do not appreciate the gravity of the matter)
  • Claiming that your top of the range marque is so advanced it can be stopped more quickly than other ordinary cars – (don’t be taken for someone who thinks the law does not apply to him)
  • Complaining of the consequences of being banned, for example, that you will have to take public transport (the court may retort, ‘that is why we ban people’!)

Conclusion

For any lawyer who does not specialise in defending road traffic cases advancing mitigation in a speeding case can be a minefield of ‘dos and don’ts’. I frequently find myself explaining to clients why some points, which they would like put before the court, will only aggravate their situation. The best results are obtained by assessing all the facts, taking ‘on the chin’ those points which cannot be avoided, and, skilfully and persuasively making the most of the mitigation that is present. In this way, even when speeding at over 100 mph, surprisingly good results can often be obtained.

25th July, 2016

 

Sunil Rupasinha, Road traffic defence barrister

 

 

image credits:

Siddhu2020

What Is The Difference Between Litigating And What Barristers Normally Do?

Barristers Wig & Gown - ShenSmith BarristersWhen the Bar’s public direct access scheme first appeared, it was designed to enable lay clients who could manage their case without the assistance of a solicitor to instruct a barrister directly. It was not intended to let barristers perform the role of solicitors. Barristers were prohibited from “conducting litigation”, which included going on the court record as acting for a client and being the court’s and opposition solicitors’ point of contact for the client. Since 2014, however, barristers who attain the right to act in a “dual capacity” may carry out the functions of a solicitor as as well as a barrister (subject to the rule that barristers may still not hold client money on account). This means that clients can now enjoy a legal “one stop shop” – something which has traditionally been available only in other jurisdictions, such as the USA – for a more streamlined and responsive service.

Does This Mean I Have To Pay The Barrister To Do Everything A Solicitor Would Do, On Top Of The Barrister Work?

Instructing a barrister in a dual capacity does not mean that you have to instruct them to do everything. It is open to the client to continue to do things such as filing documents at court themselves. The scope of the barrister’s work is defined in a client care letter – just as it would be under a normal direct access instruction – so you can be flexible in what responsibilities you want them to take on. You can feel your way as you go, increasing or decreasing the barrister’s responsibilities according to how you get on with managing your case, or leave everything in their hands for a period, because you are going on holiday or have another commitment which requires your attention, then go back on the court record as acting for yourself. If you want a barrister to go on the court record as acting for you, it is likely that they will require an up front contingency payment to cover any work which they may be required (but not specifically instructed) to do as a consequence of being on the court record, though any balance will be refundable at the end of the barrister’s period of instruction.

What Advantages Does The “One Stop Shop” Model Have Over Using A Barrister And A Solicitor?

One stop shop litigationBy instructing a barrister in a dual capacity, you will effectively be instructing a solicitor in sole practice who has specialist training and experience in the barrister’s traditional functions: advice; drafting; and advocacy. This means that, every time any of those three services is required, time and money will be saved, as there will be no need for a solicitor to draft instructions to the barrister and wait for them to read those instructions (and and accompanying documents) and revert. Similarly, if the barrister needs more information from you, they can just ask directly, speeding things up and saving costs.

Top Tips when Taking Formal Legal Advice, from barrister Dirk van Heck

 

Top tips for formal legal include:

  • It is cost-effective to ‘front-load’ your advice, and get a senior barrister at an early stage.
  • A written legal advice is advisable, because it will be complete, coherent, and you can refer back to it to see what the terms of reference are.
  • You can change your barrister at any stage for someone you gel better with, although it is better to stick with a barrister once you have started, as he will have the background knowledge of the case.
  • Watch the video for full details.

I need to save my driving licence. How much regard should I pay to the ‘success rates’ I see advertised by motor offence solicitors?

Introduction

You stand accused of having committed a road traffic offence. It is essential that you maximise your chances of saving your driving licence. You are looking for the lawyer, barrister or solicitor, who will give you the best chance of doing so. You Google ‘success rates motor offence solicitors’ and find a whole series of solicitors’ websites boasting success rates of between 95-100%. Should you be persuaded by these claims to instruct one of these fabulously successful solicitors? 

Legal Cases are rarely black or white

I regularly represent motorists who have pleaded ‘Guilty’ to speeding at excessively high speeds. Recently I had a client who was sentenced for speeding at 127 mph. After considering carefully his mitigation the court elected not to ban him (at all). How should this be compared with a solicitor who presents mitigation for a client who avoids a ban (let’s say for speeding at 91 mph in a 70 mph limit)? You may think that it would be relatively easy to avoid a ban in the latter case compared with the former. So, how much weight should each case be accorded in a ‘success’ table?

To take a variation on the above example, I recently represented, upon a ‘Guilty’ plea, a gent caught speeding at well over 100 mph. He was banned for 28 days. As soon as we were out of earshot of the magistrates he made clear in emphatic terms that he regarded the sentence as a ‘result’ (he was thrilled that the ban was short enough to allow him to keep his job when he had justifiably expected a markedly longer ban). If ‘success’ is gauged, in such cases, by the crude measure of avoidance of a ban then this case would have had to have been registered as a ‘failure’ in any league table. Yet, it was clearly a marked ‘success’ from the perspective of the client (which, after all, is the only perspective that matters). I can give example after example of cases resulting in bans but which the clients regarded as ‘successes’ such as the man speeding at 97 mph in a 50 mph limit who received only a 7-week ban when he expected a 7-month ban and so on….

Contested hearings have even more variables than ‘guilty’ pleas (too many for me to even begin to set out in a short article of this type). Consequently, they are even less suitable for measurement in any kind of ‘success’ table. In any event, so called ‘success rates’ can only have any meaning if one is comparing like with like. For this to have happened the solicitors’ practices advertising ‘success rates’ would have had to have agreed and common criteria as to how ‘success’ should be measured. So, next time you read of a motor offence solicitor claiming to have an impressive ‘success’ rate as measured by his percentage of ‘successes’ in motor offence cases you might care to email him or her and ask for the criteria which he and his fellow solicitors have agreed should be used. I am asked from time to time what my ‘success’ rate is. I never provide a percentage figure as to do so would, in my view, be potentially misleading and, therefore, unethical.

How can you assess the abilities of lawyers you identify online?

You can and should make enquiries as to the professional competence and reputation of the lawyers concerned. This is not always as difficult as you may think. Nowadays, there is often social evidence that can be checked. For example, you can ask them to point you to publications they have written on their area of specialisation. You can often look at their LinkedIn profiles to see how many personal recommendations have been posted about them and what they say. You can ask them to give you the details of some clients whom they have dealt with recently whom you can contact and so on. And, of course, you can read the testimonials on their websites. If you take these steps, ensure that they are experienced and that they specialise in the area of law with which you are concerned then you will have done what you can to ensure you have the best representation available.

 

15th March, 2017

Sunil Rupasinha,

motor offence barrister

Image credits:

kiwinz

peggydavis66

 

 

You stand accused of a road traffic offence. Do you need a lawyer?

There is no legal requirement for anyone charged with a road traffic offence to engage the services of a lawyer. An accused is perfectly entitled to research the law, prepare his case and then represent himself in court. If the allegation is of having committed a minor offence which is not endorsable with penalty points you might well form the view that the costs of instructing a lawyer are disproportionately high. Conversely, depending on the value you place on them, if any of your driving licence, reputation and/or liberty are at risk of being taken away you might well form the view that the costs of obtaining legal advice and representation are, relative to what is at stake, low.

You might find a medical analogy helpful – if one of your family were ill would you advise visiting a doctor to diagnose the illness and taking his advice on a prescription? Or would you instead suggest a Google search to self-diagnose and treat with all the risks posed by the proliferation of false and misleading information on the internet? Or, lastly, would you suggest putting one’s head in the sand and hoping it would all go away?

Believe it or not those accused of road traffic offences fall into all 3 camps! Sometimes those facing minor matters are confident they can go it alone. Of those facing allegations with potentially serious consequences some simply put their heads in the sand hoping it will all go away but most (in this category) seem to obtain legal advice in one form or another.

So, if you have decided to obtain legal advice and/or representation what are your choices?

You could consult a firm of solicitors        

Most solicitors do civil work of one type or another and so would not agree to take on the defence of a road traffic prosecution as this involves criminal law and procedure with which they are unfamiliar. Therefore, most would take the ethically correct decision not to represent you. Solicitors who do general criminal work would be most likely to accept your case even though they do not specialise in motor offences. Finally, there are some firms of solicitors who specialise solely in motor offences. In the next paragraph, I set out some of the factors you might like to take into account when considering a solicitor option.

I am considering engaging a firm of solicitors. What do I need to know?

Suppose you have been invited to attend a solicitors’ office to give your account and to receive advice upon your options. You have also been told that they will instruct a barrister for you to represent you at court. Should you simply attend confident that your case will be well handled?

The first thing you should ask is whether the person you are going to meet is, in fact, a qualified solicitor at all — as firms of solicitors sometimes delegate this task to junior paralegals or legal executives. Whether a solicitor or not you also need to know whether he or she specialises in the field of motor offences (remember, the whole direction of your case could be determined at this initial meeting so why should you be advised by someone who has little experience in this field). You might be told, ‘don’t worry, we will instruct an ‘expert’ barrister to represent you at court’.

CPS Surry - Driving offences It is true that barristers are expert advocates and trial lawyers. However, you should check the barrister’s on-line profile to see how experienced he is in this field. You should also ask how much is the barrister to be paid (you might be disturbed to find that this is only a small portion of your costs compared to what the solicitor is taking which itself calls into question his level of expertise and motivation). Finally, you should ask if the firm has an agreement with the barrister’s chambers that they can switch the barrister the night before the case without reference to you (believe it or not this is a common practice especially where the barrister’s fee is low). If, however, upon enquiry your legal team consists of an experienced solicitor and barrister both of whom specialise in this field of law, you have checked out their profiles and testimonials, and, they have been independently assessed as being ‘top notch’, then, ‘well done’ as it would seem that you may have found yourself a good team. Do ensure though that you insist upon meeting your barrister well before the court date as it can be important that his expertise is used in case preparation. Of course, paying a solicitor and a barrister, especially if they are both senior and experienced in the field of motor offences, is likely to prove very expensive in fees which is why you might like to read on to the next paragraph.

You could consider a direct access barrister instead

This is another option. Once again you should look carefully at his or her level of experience (both overall and in this particular field). Does he have broad ranging experience of advocacy in tribunals ranging from the local magistrates’ court to the Old Bailey itself through to the Court of Criminal Appeal, for example, (or, has he spent most of his professional life in local Magistrates’ Courts?) You should look for articles written on the subject area of your particular legal issue by this barrister as well as at his online profile, testimonials, Linked-in recommendations and so on. Finally, check to see if he has been independently assessed as a top level court room lawyer (was he either ‘A’ list on the Attorney General’s list of advocates or level 4 on the CPS list?) This option also provides the advantage of continuity in that you see the same person for initial advice and case preparation who is going to represent you in court in due course. Unless you need to instruct a solicitor as well for some reason why not consider going directly to a barrister. After all, legal costs are high enough without instructing two lawyers when one will do….

 

Conclusion

The above are just some of the options available to you. Whichever route you take, do your research carefully, look for evidence of genuine specialisation in the area of law required, and, speak to the lawyer concerned before engaging him. After all, your driving licence may be at stake.