Deprivation of liberty cases

The Court of Protection is drawing up plans to cope with a proposed 10-fold surge in the number of legal challenges against decisions taken by local authorities to deprive individuals of their liberty.

Following judgment in a recent case in the Supreme Court, P v Cheshire West and Chester Council, the Court has expressed concern that a numerous individuals may have wrongly been deprived of their liberty on mental health grounds. It is anticipated that the Courts will be flooded with applications from friends, family and loved ones of the individual suffering the deprivation in order to challenge the decisions made.

If you are concerned that Social Services have wrongly removed a friend or family member from their usual surroundings and accommodated them in a care home or a supported living placement then we may be able to help you in seeking resolution of this important issue.

Bhatia Best has a specialist Community Care Team experienced in this area. We are able to offer advice and assistance, on an urgent basis of necessary, and able to seek a determination by the Court. Legal Aid is available for clients that are in receipt of benefits or a low income.
For advice and assistance on any aspect Community Care and Court of Protection work please feel free to contact Martin Bridger, Stuart Luke or the Community Care Team at Bhatia Best on 0115 9503231 or email martin.bridger@bhatiabest.co.uk

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Bhatia Best Solicitor nominated for prestigious award.

Our very own Community Care and Public Law specialist solicitor, Martin Bridger, has been nominated for the 2014 Marsh Trust Award for Outstanding Achievement in Work with Children and Families.

The nomination reflects the important work that Martin and all of the members of our Public Law and Community Care team are doing to ensure that some of the most vulnerable individuals in society are afforded with the support that they are entitled to expect from Local Authorities, the NHS and the Home Office.

In receiving the nomination Martin had the following words to say:
“It is a great honour to receive the nomination for this prestigious award.

The work that I and my colleagues do in assisting these vulnerable clients is made much easier as a result of the hard work and assistance offered by the national charitable organisations and agencies that work closely with us.

I take great satisfaction in the work I do and in achieving positive outcomes for my clients, ensuring that services and support that have been missing, are afforded to them by the appropriate limb of the state.

It makes the work that I do even more rewarding when it is acknowledged like it has been by this nomination.”

The ceremony for the award will take place later this year.

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NOTTINGHAM TRENT UNIVERSITY AND BHATIA BEST SOLICITORS

– A FIRM RELATIONSHIP

The annual influx of Placement Students from the Nottingham Trent University’s (LLB) Sandwich Placement Programme commenced work at Bhatia Best Solicitors this week.

There are seven Placement Students in this year’s intake:-

Rebecca Singleton – Public Law and Community Care Department.
Lara Bethell – Nottingham Family Department.
Hannah Cussans – Nottingham Family Department.
Anthony Cheung – Nottingham Criminal Department.
Alexis Vandyke-Mercer – Nottingham Criminal Department.
Udochi Agbada – Nottingham Criminal Department
Alice Herbert-Radford will provide a peripatetic support role in both the Family and Criminal Departments at Derby.

All the students were successful in a rigorous interview process commencing in February of this year.

Bhatia Best has a long standing relationship with Nottingham Trent University, and has been taking Placement Students since 1993.

Directors Ash Bhatia and Matt Best are both alumni of Nottingham Trent University and many current employed solicitors at Bhatia Best were introduced to the firm through the Placement Programme. Indeed Partner Joanne Jarvis was the firm’s very first Placement Student.

A Placement period at Bhatia Best is a genuine step on a legal career path, as evidenced by the number of Placements placed with the firm on an annual basis.

Former Placement Students Ben Brown and Jodie Smith have recently been offered Paralegal places at the firm, with a view to studying their Legal Practice Certificate on a part-time basis.

Ben who will be working in the Bhatia Best Criminal Department at Nottingham, stated “This is a fantastic opportunity to work and complete my studies.  Especially in an environment where the Government loan system is not available for a fourth year of study.  Any assistance with tuition fees would have to have been provided on a commercial loan basis with a bank.”

Bhatia Best Solicitors would like to extend a warm welcome to all the new employees and wish them every success in their legal careers.

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Bhatia Best Solicitor Advocate Richard Posner appeared on new local TV station Notts TV to discuss the issue of dangerous dogs.

Richard was invited onto the Daily News programme of the fledgling channel as a legal expert to discuss the issue of a local lady who was mauled in Woodborough Park by two dogs.

Richard lent his expertise to the general discussion and pointed out the recent change in legislation which increased maximum sentences for offences committed under the Dangerous Dogs Act 1991.

Richard was delighted to be a part of this new venture and said “This is a local TV station highlighting local issues.  There couldn’t be a better platform for the people of Nottingham”.

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Following Nottingham Trent University’s graduation week, Bhatia Best are pleased to offer two recent graduates full-time positions with the firm.

Ben Brown and Jodie Smith were both Placement Students in 2012/13 as part of the Nottingham Trent University’s (LLB) Sandwich Placement Programme.
Following their graduation, both have been offered full-time Paralegal positions at our Nottingham office while they undertake the Legal Practice Course on a part-time basis.

Bhatia Best has a long standing relationship with Nottingham Trent University and has taken on Placement Students each year since 1993.
Many of the firm’s current solicitors were introduced to Bhatia Best through the Placement Programme.

Jodie, who will be working in the Nottingham Family Department, said “It’s brilliant that the firm are offering graduate opportunities given the current climate. I’m thrilled to be returning to Bhatia Best and a job I enjoy. Studying the LPC part time will also ease both the workload and financial burden.”

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It’s hardly surprising that the common law doctrine of ‘Joint Enterprise’ attracts critical commentary. Hard cases, murder cases, do that.

Joint enterprise enables anyone involved in an offence to be prosecuted. Little participation in the venture is needed, although mere presence is not enough. It can be almost anything and a minor role will suffice. A getaway driver, a look out, encouragement or advice. However, even a minor participant will be guilty of the full offence and sentenced accordingly. The Accessories and Abbetors Act 1861 says “whoever shall aid, abet, counsel or procure [an offence] … shall be punished as a principal offender”.

But in a murder case a Judge has no discretion. A life sentence is mandatory. So it’s natural that murder cases provoke debate. It will depend on which side you take. “But he didn’t pull the trigger?”, or “But for him no one would be dead”. It’s stark that a single utterance can result in a life sentence. An example is R v. Derek Bentley. Derek (19 years) was seen on a roof with Chris Craig (16 years). Derek was arrested and remained docile. Chris pointed a gun at the officer, who bravely demanded it. Derek shouted “let him have it, Chris”. But did he mean, pull the trigger or surrender the gun? Derek was hanged on 28.1.53. Being a youth Chris’s life was spared. 45 years on in 1998 the Court of Appeal posthumously quashed Derek’s conviction as being unsafe.

Nowadays joint enterprise still reveals occasional problems, but comparatively few. Although used in thousands of murder cases, the doctrine is also routinely used in all other offences. Drugs, dishonesty, violence and public disorder. But in these the judge has a discretion on sentence. Regard is had to the role of each offender. What each did. Whether minor or major, so the sentence reflects individual participation and culpability. Fairness is ensured by the Sentencing Guidelines and Judicial Training. In the real world, practitioners are rarely troubled.

The doctrine is best seen in the context of our entire criminal system. Burden of proof remaining with the Crown, beyond reasonable doubt, an adversarial system with forensic scrutiny by skilled lawyers and an impartial judge, plus an appeal. Perhaps Judges should be allowed discretion in murder cases too, but until an alternate emerges there are 3 things to be found in the detail. The devil, miscarriages and eventually Justice. Sadly too late for Derek, but probably not past it’s sell by date yet.

Ash Bhatia
Bhatia Best Solicitors
Past President & Chair of Notts Law Society
Criminal Committee

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Grayling’s Legal Aid Residence Test Defeated – Judgment handed down in The Queen on the Application of the Public Law Project v The Secretary of State for Justice[2014] EWHC 2365 (Admin)

On 15th July judgment was handed down by the three-judge Divisional on the Lord Chancellor’s decision to alter civil legal aid eligibility rules by introducing a ‘residence test’ The test would withhold legal aid from recent, lawful migrants and irregular migrants including children born here many years ago. British nationals born and living abroad would fail the test, as would those unable to prove past residence includingwomen fleeing domestic violence, pre-school age children and the homeless. Despite the Parliamentary Joint Committees on Statutory Instruments and Human Rights both expressing concerns over its legality,  the controversial test was approved by the House of Commons last week. 32 leading NGOs have since issued a joint briefing calling on the House of Lords to reject the test using a ‘fatal motion’ on 21 July.

In a 40-page unanimous judgment, the Court finds that the test is unlawful, that the Lord Chancellor exceeded his statutory powers when devising it and that it would discriminate against ‘foreigners’ without justification.

Giving the Court’s lead judgment, Lord Justice Moses said at paragraphs 45 and 50:

“…the Lord Chancellor now asserts a power to introduce secondary legislation which excludes, from those adjudged to have the highest priority need, those whose need is just as great, but whose connection with the United Kingdom is weaker.

… the instrument is ultra vires and unlawful.  I conclude that LASPO does not permit such a criterion to be introduced by secondary legislation.  It extends the scope and purpose of the statute and is, accordingly, outwith the power conferred ….”

adding at paragraph 60:

“It is and was beyond question that the introduction of such a test was discriminatory…  Indeed, that is its declared purpose.”

At paragraphs 82 and 83 the Court held:

“Within the system provided in Schedule 1 of LASPO, the United Kingdom is not permitted to discriminate against non-residents on the grounds that to do so might save costs…

Certainly it is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not.  In my judgment, a residence test cannot be justified in relation to the enforcement of domestic law or the protection afforded by domestic law, which is applicable to all equally, provided they are within its jurisdiction.  In the context of a discriminatory provision relating to legal assistance, invoking public confidence amounts to little more than reliance on public prejudice.”

At paragraphs 27, 29, 30 and 31, the judgment highlights examples from the hundreds of pages of evidence filed in the case giving real-life examples of people who would be denied legal aid in future:

“It is not difficult to identify those on whom the application of the residence test would have a direct impact. Families of recently arrived children with special educational needs, whose access to education depends on proper provision being made to meet their additional needs, will be unable to access legal help and advice….

…individuals who lack mental capacity and are protected persons for litigation purposes, and therefore unable to litigate without a litigation friend, but who cannot meet the residence test, will be unable to access legal advice and representation… [for example]  ‘P’ a severely learning disabled adult, who had been ‘forced to live in a dog kennel outside the house, had been beaten regularly by his brother and mother, and starved over an extensive period of time’…

… the residence test will exclude from access to legal aid individuals resident abroad who have been subject to serious abuses at the hands of UK forces.”

Following the judgment the Minister for Justice Chris Grayling has confirmed that the test, which was expected to come into force next month, will now no longer be introduced.  However the Government have applied for permission to appeal and an appeal to the Court of Appeal is widely expected over the course of the coming few weeks and months.

To discuss the judgment, its implications and for advice on any prospective Community Care or Public Law cases please feel free to contact the Public Law Team by email at stuart.luke@bhatiabest.co.uk  or telephone: 0115 9503231

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Police have identified 80 potential victims of physical and sexual abuse at five children’s care homes in Nottinghamshire.
The homes include Beechwood Children’s Home in Mapperley, where some former residents have already been awarded compensation.
The findings of the Nottinghamshire Police stem from a national investigation in to historic child abuse claims.

We have extensive experience in dealing with compensation claims arising from abuse and maltreatment of children. We have a team of specialist child abuse compensation lawyers. Our specialist team of senior solicitors have vast experience in dealing with claims of this nature and are able to offer advice and assistance on available legal options with a confidential, sympathetic and professional approach. We have represented many former victims of child abuse both in individual claims and group actions and recovered substantial compensation for those victims.

If you were previously in the care of Social Services and feel that you were the subject of maltreatment or abuse please feel free to contact Martin Bridger or Stuart Luke on 0115 9503231 or email martin.bridger@bhatiabest.co.uk

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Bhatia Best is delighted to announce the award of training contracts to four of our paralegal staff.

Rebecca Williams started out in our public law department in 2011 and is now a valued member of our criminal team.

We first knew Laura Hush as a placement student during her sandwich year from Nottingham Trent University. We were delighted that she returned to us having completed her legal practice course. She has recently moved to our criminal department from public law.

Debbie Heath joined our family department in 2013 having previously worked in commercial property. She has since done criminal work at our Mansfield office and is now based in our public law department in Nottingham.

Colleen Webb joined us in 2012 with a wealth of criminal law experience. She too spent her initial time at Bhatia Best with our public law team but has now returned to criminal work. Away from the office Colleen is a member of a local flat track Roller Derby team.

Bhatia Best has long recognised that the provision of training contracts is vital not only to the future of the firm but to the profession as a whole. The recent economic climate has seen many firms reduce the number of training contracts on offer. We are therefore particularly pleased that we have been able to offer traineeships to the above four very deserving members of staff and look forward to their future qualification as solicitors

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Rotherham Council child abuse scandal

A damning report has revealed that more than 1400 children in Rotherham were the victims of abuse between 1997 and 2013.

It has emerged that authorities in the town “could and should” have done more to stop the abuse from happening and did not listen to the children trying to report it.

We have extensive experience in dealing with compensation claims arising from abuse and maltreatment of children. Our specialist team of senior solicitors  has vast experience in dealing with claims of this nature and are able to offer advice and assistance on available legal options with a confidential, sympathetic and professional approach. We have represented many former victims of child abuse both in individual claims and group actions and have recovered substantial compensation.

If you are an organisation supporting victims of abuse or an individual who has suffered neglect and/or abuse and the authorities failed to take action or listen to your concerns, then we may be able to help you.

Please feel free to contact Martin Bridger on 0115 9503231 or email martin.bridger@bhatiabest.co.uk.

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Bhatia Best’s new office in Mansfield opened on Monday 3rd November 2014.

The office, (formerly the Westfield Hotel) is located opposite Mansfield Magistrates and Family Court on Westfield Lane.

The proximity of our office to the court will be a distinct advantage to all our clients and of great benefit to potential new clients.

Our free initial appointment service is accessed by attending the office personally or by booking an appointment by telephone/live chat/email or via the contact page on our website.

The new office incorporates substantial meeting space and will be available for pre-arranged meetings for all our clients. The meeting rooms will be especially useful for advocates meetings in public law and family cases.

Bhatia Best are committed to providing both public and privately funded legal services in Mansfield as evidenced by this substantial financial commitment to the local area.

Bhatia Best can provide substantial resources to clients at short notice and we would encourage you to contact us with regard to your legal issue as soon as possible.

It is also noteworthy that we provide a 24 hour helpline to compliment our offices in Mansfield, Derby and Nottingham.

Contact our Mansfield office on: (01623) 427 944, or click here for our contact form.

From left to right: Danielle Taylor (Legal Executive), Matthew Greene (Associate Partner), Ashley Marshall (Paralegal), Sarah Sanderson (Solicitor), Richard Etherington (Paralegal), Robert Glansfield (Consultant Solicitor)

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Over 800,000 – or one in five – of all crimes reported to the police are not being recorded, a report suggests.

The problem is greatest for victims of violent crime, with a third going unrecorded. Of sexual offences, 26% are not recorded.

An HM Inspectorate of Constabulary report looked at more than 8,000 reports of crime in England and Wales.

The watchdog said the failure to record crime properly was “indefensible”.

Home Secretary Theresa May described the findings as “utterly unacceptable”, but police representatives said the situation had improved since the study.

The Association of Chief Police Officers said workload pressures, target culture and inadequate supervision all contributed to under-recording.

An unrecorded crime is classed as one that is reported to the police but not recorded as an offence. It means an investigation into the alleged crime is unlikely to happen.

The audit reviewed reports of crime between November 2012 and October 2013 across all 43 forces in England and Wales.

It found that:

- Among the sample, 37 rape allegations were not recorded as a crime
- For 3,842 reported crimes, offenders were given a caution or a penalty notice – but inspectors believe 500 of those should have been charged or given a heavier penalty
- 3,246 of those offences that were recorded were then deemed to be “no crimes” – but inspectors believe 20% of those decisions were wrong and a crime had been committed
- The incidents recorded as “no-crimes” including 200 reports of rape and 250 of violent crime
- More than 800 of the victims were not told of the decision to “no-crime” their report

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The government did not “think through” its legal aid cuts early enough and “does not know” whether people in need of aid are getting it, a report says.

The National Audit Office report also said the number of family court cases about child contact where neither parent had a lawyer rose by 89% in 2013/14 in England and Wales.

Since April 2013, a range of civil cases – including most family, debt, housing, employment and social welfare cases – have not qualified for legal aid.

The NAO said the Ministry of Justice “did not think through early enough” the full impact of its changes and “does not know whether people who are eligible for legal aid are able to get it”.

Labour’s shadow justice secretary Sadiq Khan said the government had “completely failed on legal aid”.

“This damning report by the NAO completely exposes David Cameron’s reckless assault on access to justice. [It leaves] hundreds of thousands without proper legal advice,” he said.

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A court of appeal judge has said she is “horrified” at the number of unrepresented litigants and warned that the delays caused will “clog up” the justice system.

Dame Elizabeth Gloster, who was appointed to the court of appeal last year said: “I’m horrified at the number of litigants in person [LIPs]. We are trying to provide them with [help]. The large number of LIPs leads to delay and is going to clog up the system. Cases with unrepresented litigants take longer.”

As many as two-thirds of cases working their way through the family courts now involve at least one side who has no lawyer to provide help, according to the family law organisation Resolution.

A Ministry of Justice spokesperson said: “A large number of people have always represented themselves in court – this happened in around half of all private family law cases in 2012 – and we provide information and guidance to help them. Judges also have expertise in supporting them, for example by explaining procedures and what is expected.”

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The number of family law cases involving children in which neither party has legal representation has nearly doubled in the last year.

The National Audit Office found that cases without lawyers can take 50% longer which has the knock-on effect of increasing costs to the taxpayer.

The findings come weeks after a senior judge accused the government of washing its hands of the problem it had created by failing to provide legal aid for parents in child custody cases.

The report says over 17,000 cases involving contact with children where both parties represented themselves started in the family courts in 2013-14, an increase of 8,110, or 89%, on the previous year.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 reduced the range of issues for which civil legal aid was available and changed financial eligibility criteria for receiving assistance.

The auditors’ report said the MoJ had failed to think through the impact the changes would have on the wider system.

Margaret Hodge, who chairs the Commons public accounts committee, said: “[The Ministry of Justice] is meeting its objective of cutting spending on civil legal aid, but it is doing this without knowing what the knock-on effects might be for other organisations and people needing advice. It is out of touch with reality and has shown no understanding of the wider cost of its reforms.”

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Extensive research undertaken by the Law Society’s Junior Lawyers Division has found that only four per cent of young lawyers are interested in working in legal aid.

The JLD Early Career Work Experience Survey, published today (1 December), uncovered a number of serious challenges faced by people entering the legal profession, and by recruiting law firms.

Challenges the research uncovered include:

• Only four per cent of young lawyers are interested in legal aid work.
• A significant rise in the cost of young solicitors’ education following tuition fee increases.
• Young lawyers are prioritising short-term earning potential over their long-term career goals in order to pay off debt.
• A low rate of new entrants successfully progressing to a training contract having taken on paralegal work as a stop-gap after study.
• A disparity between the development value of unpaid and paid work experience.
• Law Society Junior Lawyers Division chair Sophia Dirir said:

‘Our research shows the stark reality of the effects of university tuition fee hikes and legal aid cuts on the future of the legal profession and the justice system. The government’s cuts will lead to people accused of crimes having no, or inadequate representation. This will ultimately deprive vulnerable members of the public of access to justice.

‘Junior lawyers are facing difficulties both financially and in accessing genuine career opportunities in the legal market place. There is evidence of a worrying trend of long-term unpaid work experience, some placements lasting up to two years. I would urge the profession to re-evaluate the situation and not put short-term commercial advantage above the development of future legal talent.’

Law Society president Andrew Caplen said:

‘Legal aid cuts and wider funding cuts are chipping away at access to justice. That is why access to justice is at the top of my agenda this year. This latest research paints a grim picture of the future of legal aid, with fewer lawyers entering this essential area of law.

‘Students thinking of embarking on a career in law should think carefully and do extensive research. Competition for training contracts remains exceptionally high with some firms receiving thousands of applications for each place. To succeed as a solicitor, you need determination, motivation and academic ability in abundance. Students should be confident that they are right for the profession and the profession is right for them before making that commitment.

‘As the representative body for solicitors in England and Wales, the Law Society is here to support students at every stage of their training, qualifying and throughout their career as a solicitor. The Junior Lawyers Division offers a range of services for students and trainees

Legal aid

In the survey, only four per cent of young lawyers said they were interested in working in legal aid. Currently, around 6.5 per cent of solicitors work in criminal legal aid and many more in civil legal aid.

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The most senior civil servant at the Ministry of Justice (MoJ) has admitted that over £300m is being slashed from the legal aid bill without research into the potential effect of the cuts.

Under the cuts pushed through by the Justice Secretary Chris Grayling, many family, debt, housing and employment cases no longer qualify for legal aid.

Ursula Brennan, the MoJ’s permanent secretary said “the Government was explicit it needed to make these changes swiftly. It was not possible to do research about the current regime.”

The National Audit Office has criticised the MoJ for not considering the effect of such rapid cuts on other areas of public spending.

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Law Society president Andrew Caplen said: ‘In the interests of access to justice, the public and the legal profession, we have decided to seek a judicial review of the legal aid crime duty tender process. In our opinion, the process creates a serious risk of market failure which could have major implications for society as well as the profession.

‘We know that our members have concerns about their livelihoods, but also more widely about the impact the outcome of the process will have on access to justice for the most vulnerable in our society.’

The Law Society Council met on Wednesday 10 December and agreed to seek a judicial review.

The Society has had discussions with the practitioner groups around their plans and these will continue.

The Society will also be offering financial support to the Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association to support their work on their potential reviews.

Detail of the timeline for the Legal Aid Agency crime duty tender process:

• 27 November – tender opens
• 15 December – midday: deadline for submitting questions on the tender process
• 29 January 2015 – tender closes w/c
• 12 June 2015 – notification of tender outcomes
• July 2015 – subject to further consideration, second fee cut implemented
• 1 October 2015 – service commencement

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Since the Ministry of Justice started cutting legal aid, many people who need help found themselves left outside in the cold to fend for themselves. Women who have suffered domestic violence have gone to a solicitors and discovered that, even though they are financially eligible, they do not have the appropriate ‘evidence’ of their abuse to qualify for free legal representation.

One victim told women’s charity Rights of Women, whose survey of domestic violence victims trying to access legal aid was published this morning:

“The law leaves me in a situation where my ex can come round when he wants to – text me, phone me – and as long as he doesn’t swear, make threats or hit me I can’t stop him. I and my kids are constantly frightened, living in lock down conditions and there is nothing we can do. It’s hard to keep going. I have been and am suicidal. I can’t cope. But there is no help.”

Another said:

“I’m in a legal black hole. I don’t qualify for legal aid and cannot afford a solicitor. So after years of sexual and emotional abuse I am left do deal with my son’s father alone. How can this be right? Where do I go?”

Today the high court will hear a legal challenge to the rules, as Chris Grayling faces his latest judicial review – just one week after losing the last one. With any luck, they will find it unlawful. But even if they do not, the evidence test needs to be drastically widened so that no woman who needs legal help against her abuser is denied it.

Bhatia Best continues to offer legal aid wherever it is available after the cuts imposed from 1 April 2013. Where legal aid is not available, we offer a menu of competitive fixed fees.

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Guidance on who is eligible for legal aid in exceptional cases is “unlawful”, judges have ruled.

Legal aid was removed from many areas of civil law as part of reforms introduced last year.

The High Court had said the guidelines on who was still eligible were “too restrictive” and overturned refusals of legal aid in six immigration cases.

The government appealed against that decision but Court of Appeal judges have now upheld the original ruling.

Ruling on the guidance, Lord Dyson said: “It correctly identifies many of the factors that should be taken into account in deciding whether to grant exceptional funding, but it neutralises their effect by wrongly stating that the threshold for funding is very high and that legal aid is required only in rare and extreme cases.”

The Ministry of Justice (MoJ) said it would “carefully consider” its next steps following Monday’s ruling.

An MoJ spokesman said: “We continue to believe that the exceptional funding scheme is functioning as intended. Its purpose is to provide funding where it is legally needed.

“Legal aid is a vital part of our justice system but resources are not limitless and must be properly targeted at the cases that need it most.”

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