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Serious Fraud Office (SFO)
Serious Organised Crime Agency (SOCA)
Setting aside a Judgment-in-default
Small Claims Court (Small Claims Track)
In the context of criminal proceedings, secondary disclosure is unused material served by the prosecution that the reviewing lawyer [within the prosecuting body] considers might undermine the prosecution or assist the defence, in light of matters raised in the defendant's defence case statement.
In criminal proceedings, a security is a sum of money lodged at court by (or on behalf of) a defendant as a condition of a defendant's bail. If the defendant fails to attend court at a subsequent hearing then this money may be forfeited.
The security should be returned to the person who lodged it at the conclusion of a case.
In civil proceedings, any party may be ordered to provide a "security for costs" in order to satisfy the court that they have sufficient funds to meet any adverse costs order.
Self-defence is a complete defence to various offences. It is a positive defence and most frequently raised in relation to allegations of common assault, assault occasioning actual bodily harm, unlawful wounding/inflicting grievous bodily harm, manslaughter, murder and attempted murder.
The law allows a person to use such force as is reasonable in the circumstances in the prevention of crime (typically an assault on him or another). What level of force is reasonable must be based on the facts as the person believed them to be. For example, if a person is being attacked, in the heat of the moment they may believe more force is required than is actually necessary. It may even be the case that no force is necessary because the defendant is not actually being attacked, but if the defendant believes they are being attacked and they use reasonable force (based on their perception) they should be acquitted. This might be the case where a perceived perpetrator makes a sudden movement which is wrongly interpreted as a lunge at the defendant.
If a defendant is suffering from voluntary intoxication then he/she will not be able to raise the defence of self-defence if it is based on a mistaken belief.
A sentence is the punishment handed down by a judge following a defendant's conviction.
The range of sentences available to the court will depend on the offence, sentencing guidelines and case law.
The sentence passed will normally be one of the following (starting with the least serious):-
- Absolute discharge
- Conditional discharge
- Community sentence
- Custodial sentence
Depending on the offence and circumstances of the case, a judge may also make one or more ancillary orders. Such orders include: an order for costs, disqualification from driving, a "bolt-on" anti-social behaviour order (ASBO) and a disqualification as a director.
If a defendant enters a guilty plea or is convicted the Court may sentence him/her immediately or adjourn the hearing for reports to be prepared. The most common type of report is a Pre-Sentence Report prepared by the Probation Service, although occasionally a sentence will be adjourned for a medical report to be prepared if there are potentially relevant factors to consider before passing sentence.
If in the Magistrates' Court the District Judge or Magistrates feel that their sentencing powers are insufficient (because the circumstances of the offence are too serious), and the Defendant has been charged with an either-way offence, the matter can be committed to the Crown Court which has greater sentencing powers (this is known as a Committal for Sentence).
When the defendant is ready to be sentenced, the Prosecutor will open the hearing by summarising the circumstances of the offence and setting out any previous convictions of the defendant. A "victim impact statement" may also be read out. This is followed by a plea in mitigation from the Defendant's solicitor or barrister. At this opportunity the Judge or Magistrates will consider any reports, references or other documents handed up. Having considered all the factors, the Judge or Magistrates will then pass sentence and make any other order deemed to be appropriate (such as ordering the defendant to pay some or all of the prosecutor's costs of the prosecution).
If a defendant receives a custodial sentence (apart from a suspended sentence) he/she will be imprisoned immediately. If they receive a community punishment they will need to make contact with the Probation Service.
There are Sentencing Guidelines both in the Magistrates' Court and Crown Court, which in addition to case law that has evolved over the years, should assist the judge identifying which range of sentences can be passed (within what is allowed under statute law). The Judge or Magistrates should make a decision based on the circumstances of the case (i.e. taking into consideration any aggravating and/or mitigating factors).
If a sentence is manifestly excessive (i.e. it does not appear to fit within the range of sentence which Sentencing Guidelines or case law state as being appropriate for the accepted facts of the case) or is wrong in law/principle (e.g. contrary to statute law) then a defendant can appeal the sentence. However, it should be borne in mind that there is often a considerable amount of scope for discretion within the range (e.g. a guideline might state a sentence between 4 and 6 years is appropriate).
In the Magistrates' Court a sentence can be appealed by making an appeal to the Crown Court. In the Crown Court this is done by making an appeal to the Court of Appeal. There are strict time limits for the appeals and potentially adverse consequences in making meritless appeals.
In certain circumstances, the Prosecution may appeal a sentence if it considers it to be unduly lenient. This is known as an Attorney-General's Reference.
Sentencing Guidelines are published by the Sentencing Guidelines Council, an authority set up by parliament to issue sentencing guidelines to the courts. The purpose of Sentencing guidelines is to aid sentencers in the complex decision-making process involved in sentencing. Guidelines also help encourage consistency in sentencing.
The Sentencing Guidelines Council receives advice from the Sentencing Advisory Panel (an independent body made up of judges, magistrates, academics, criminal justice practitioners and people from outside the criminal justice system) on a particular sentencing topic and uses this to formulate sentencing guidelines on the subject. These ‘draft’ guidelines are published, consulted on and then revised. Final sentencing guidelines are then issued, ready to be used by sentencers.
The Serious Fraud Office (SFO) is a government body that investigates and prosecutes the most serious or complex of fraud, and corruption cases.
The SFO is independent of other prosecuting agencies such as the Crown Prosecutions Service (CPS).
The Director of the SFO is appointed by and accountable to the Attorney General.
Formed in 2006 following the merger of several agencies, the Serious Organised Crime Agency (SOCA) is a non-geographical law enforcement agency.
SOCA aims to combat drug trafficking, organised immigration crime, fraud and organised crime generally. It also has a role in supporting and liaising with other law enforcement agencies.
A defendant can apply to have a judgment-in-default set aside. For the application to be successful the defendant will need to satisfy the court that he/she has a real prospect of successfully defending the claim or that there appears to be some other good reason why the judgment-in-default should be set aside.
When considering whether to grant such an application the court should consider whether the defendant acted promptly in making the application.
Sexual assault is an either-way sexual offence that can result in a lengthy custodial sentence being imposed.
A person (A) commits a sexual assault if he intentionally touches another person (B), -the touching is "sexual", B does not consent to the touching, and A does not reasonably believe that B consents.
Whether touching is "sexual" or not will depend on the particular circumstances of the case and will be left for the jury (or magistrates/district judge) to determine. The test they should apply is:-
- whether a reasonable person would consider either that the particular act is, by its nature, sexual; or
- whether it could be sexual; and
- either because of the particular circumstances and/or the defendant's intention, it is sexual.
The Sexual Offences Act 2003 consolidated the law in relation to sexual offences and created a number of new offences (although historic allegations that pre-date the implication of the Act will still be dealt with under old laws).
The three most common offences are:-
- Sexual assault
- Assault by penetration
In addition to the above there are a whole raft of specific offences which deal with sexual assaults on children, children under 13 and the vulnerable. There are also specific offences which relate to abuses of positions of trust, grooming, prostitution, sex trafficking, incest, the creation/distribution/possession of child pornography, bestiality, exposure, voyeurism, necrophilia and sexual activity in a public lavatory.
In addition to any sentence imposed, a defendant convicted of a sexual offence will usually be required to register as a sex offender with the police within a certain period of their conviction/release. They will also be required to re-register at their local police station annually and when moving address. The length an individual remains on the register will depend on the sentence passed. Failure to register is a separate offence that can result in imprisonment.
The term “small claims court” is used to refer to cases that are allocated to the “small claims track” of the county court.
Proceedings allocated to the small claims track are intended to be more informal and simple so that parties may litigate without incurring the cost of a solicitor. A party may still appoint a solicitor to act for him/her, although legal costs are not normally recoverable from the losing party and thus it will often be uneconomical to instruct a solicitor. This is because the legal costs incurred may account for a large proportion of the value of the claim or even exceed the value of the claim. This could lead to a situation whereby a successful claimant is worse off for bringing a claim.
Claim in the small claims track should be for less than £5,000 (or in the case of personal injury claims/claims for housing disrepair for residential premises, less than £1,000).
A solicitor is a qualified lawyer who will hold a current practising certificate with the Law Society of England and Wales.
The role of a solicitor in private practice will typically involve:-
- taking instructions from a client (that is, ask them how they can help)
- advising the client on the law and how it relates to their situation
- recommending one or more options to the client
- taking further instructions from the client- representing the client
The representation of a client may take place in a variety of forums, for example - in writing, orally on the telephone and/or via advocacy in the courts or another tribunal.
To qualify as a solicitor an individual needs to obtain a law degree (three years), attend a Legal Practice Course (one year) and undertake a training contract with a provider of legal services (two years). There are other routes if an individual has existing qualifications (e.g. a Postgraduate Diploma in Law) and it is now possible to study and/or work part-time and combine the two in a variety of different ways.
A solicitor in private practice will normally be employed by a firm of solicitors. Historically, law firms would be named after their partners (e.g. "Smith and Jones"). A partner is a senior solicitor who again, historically, would own a share of the firm. In recent times, the restrictions on the naming of law firms have been relaxed, as has the ownership/structuring of firms. Nowadays a "partner" may only be a partner in name and it will soon be possible for non-solicitors to own part of a law firm.
Until relatively recently solicitors did not have rights of audience in the Crown Court or other higher courts and such hearings were reserved to barristers.
A Solicitor-Advocate or Higher Courts Advocate ("HCA") is a solicitor who (depending on their accreditation) has rights of audience in the higher courts and acts as an advocate alongside barristers.
Whilst the ability to appear at a Crown Court hearing is certainly another string to a solicitor's bow, some lawyers are concerned that an increase in Solicitor-Advocates undertaking work normally reserved to barristers will lead to a fusing of the professions.
In the context of drink-driving offences if the court is satisfied that "special reasons" relating to the offence exist then it does not need to impose a normally mandatory minimum period of disqualification.
Examples of "special reasons" include where the defendant did not know they were over the limit as someone had "spiked" their drink or where they needed to drive a critically injured person to hospital.
The evidential threshold for special reasons is fairly high; were it not, anyone could escape a disqualification by saying "I must have been spiked".
The offence is one of strict liability and therefore when pleading special reasons it is normal to enter a guilty plea and request a "special reasons hearing" at which the defendant must prove the reasons. Special reasons do not constitute a defence and can only help the defendant escape a disqualification and not a conviction.
Speeding is a motoring offence that is committed if the driver of a vehicle exceeds the prescribed speed limit for the part of the road he/she is travelling on. Aside from challenging the speed/camera equipment/clarity road signs, there a few defences to speeding. The defence of necessity may be established where a passenger is seriously ill, needs taking to hospital and there is no viable alternative. Not knowing the speed a driver is travelling or the speed limit for the road (unless the signs are misleading) is not a defence.
Most speeding offences are dealt with by way of a Fixed Penalty Notice, resulting in three penalty points and a £60 fine. However, these are simply "offers of settlement" and a driver is under no obligation to accept them; likewise (notwithstanding any internal policy) the police are under no obligation to issue them. An individual may be prosecuted in the courts for speeding either through choice (i.e. not accepting a Fixed Penalty Notice) or as a result of the police deciding to prosecute immediately. In fact, Fixed Penalty Notices are accompanied by a "Notice of Intended Prosecution" indicating that the police intend to prosecute if the "offer" of the Fixed Penalty Notice is not accepted within a certain period of time.
Whilst an individual who receives a Notice of Intended Prosecution is not under an obligation to accept a Fixed Penalty Notice, he/she is under an obligation to notify the details of the driver at the time of the alleged offence. A Notice of Intended Prosecution will have been sent to the registered keeper of the vehicle (identified via the registration number) and thus the driver on the day may be different. Failure to give information as to identity of driver is itself an offence (endorsable by six penalty points). It is of course in the interests of a registered keeper to notify the police if it was not them driving the vehicle.
A Notice of Intended Prosecution must normally be served within 14 days of the alleged incident (or given verbally at the scene). If not then a subsequent prosecution may be flawed.
In most cases, if there is no dispute over the allegation, it is best for a driver to accept a Fixed Penalty Notice. This is because a court is able (and often likely) to impose a greater fine and number of penalty points. However, if a driver has a genuine defence then he can contest the allegation at trial.
The onus is on the police to ask a court to issue a summons to bring court proceedings and so where a driver does not want to accept a Fixed Penalty Notice, providing he/she has provided the information as to the identity of the driver, it is for the police to take the next steps. Normally, the police must "lay an information" (i.e. request the court to issue a summons) within six months of the offence.
The maximum penalty a court can impose for speeding is a fine. It can impose between three and six penalty points. However, it also has discretion to disqualify a driver. This will largely depend on the circumstances of the offence and, in particular, by how much the speed limit was exceeded. If the speed was considerably over the speed limit (e.g. 100mph on the motorway) then a driver is highly unlikely to be offered a Fixed Penalty Notice and stands a good chance of being disqualified by a court. In certain circumstances, the alleged speed will be so far over the limit and so dangerous that a driver may be prosecuted for dangerous driving (a potentially imprisonable offence).
A defendant also needs to consider the "totting-up" provisions, whereby a driver is liable to be disqualified if he/she accrues 12 penalty points within three years.
Statute Law is a term used to describe the Acts of Parliament that prescribe the law.
Statute Law is superior to case law. For example, if parliament does not like the way the existing case law has developed it can introduce a statute to drastically change the law.
Statute Law is also used to update, clarify, consolidate or codify the law in a particular area.
In the event of a conflict between statute law and EU law, EU law should prevail.
In the event of a conflict between Statute Law and an individual's rights under the European Convention on Human Rights, Statute Law should prevail as courts are only required to interpret legislation to give effect to Convention rights, in so far as it possible.
A statutory appeal is a prescribed process of appeal that is granted by a specific statute against the decision of a court or tribunal.
An example of a statutory appeal is a doctor appealing to the High Court against the decision of the General Medical Council.
A statutory demand is a formal demand made to a debtor for the immediate return of money owed to the person making the demand. It should normally be personally served on the debtor.
If the debtor disputes the debt he may make an application to the court to have the statutory demand set aside (if the person making the statutory demand is unwilling to withdraw it). This must be done within 18 days of the document being served. The appropriate court will be the location that the debtor would normally petition for his/her own bankruptcy and this should be specified on the face of the statutory demand.
If after 21 days no application has been made to have the statutory demand set aside then the individual who made the demand may petition for the debtor's bankruptcy.
A statutory demand will normally be set aside by a court if there is "triable" dispute about the debt. The court will normally award the debtor's costs to be paid in these circumstances. The appropriate route for a disputed debt with a "triable" issue is a county court claim.
A statutory demand is a useful and cost-effective tool (there is no need to issue the document at court). The threat of bankruptcy will often do the trick and force a debtor to pay. However, some debtors may see a statutory demand as a bluff and take their chances that the person making the demand is not serious about instigating bankruptcy proceedings.
The suspension of court proceedings either on a temporary or permanent basis.
(a) in civil proceedings where a matter may be stayed temporarily whilst the parties attempt to reach negotiation and
(b) in criminal proceedings where a matter may be stayed permanently if the prosecution has been found to be an abuse of the court's process.
A stay may be ordered following an application from a party to the proceedings or, in some instances, on the court's own motion.
A strict liability offence which is one that requires no mental element (or mens rea). Such offences include driving with no insurance and driving with excess alcohol.
Most offences require the prosecution to prove the defendant has a state of mind (such as intention or recklessness). By dispensing with this requirement it is easier for a prosecution to secure a conviction. The idea is that strict liability acts as a deterrent and will deal with public policy issues.
In the context of civil proceedings, a party may make an application for summary judgment which will normally be granted if it can show:-
- The claimant or defendant has no real prospect of succeeding on the claim or defence; and
- There is no other compelling reason why the case or issue should be disposed of at trial.
Such an application should not be made until a Defence has been filed, but then should be made as quickly as possible.
An example of where an application might be made by a claimant is where a defendant files/serves a very weak defence, purely as a means of delaying judgment (the matter may take months or years to come to trial otherwise). Likewise, a defendant may wish to make an application where there are obvious fatal defects in the claim.
An application should not simply because a party thinks another party's case is a little weak - there must be "no real prospect" of it succeeding. A misguided application is likely to result in adverse costs consequences.
Summary-only offences are offences that can only be tried in the Magistrates' Court.
Typically, these are the less serious offences and range from driving offences and fare evasion through to assaulting a police constable.
The sentencing powers of the Magistrates' Court are limited to six months' imprisonment for each offence for offences that carry a custodial sentence. Many summary-only offences do not carry a custodial sentence.
Most (but not all) summary-only offences must be pursued (by way of the prosecutor requesting a summons) within six months of the alleged offence being committed.
From a defendant's point of view, the downside of summary-only offences is that they do not have the right to elect a jury trial in the Crown Court. The conviction rate in the Magistrates' Court is considerably higher.
The issuing of a summons is a method of instigating a criminal prosecution.
A summons is commonly used for more minor offences (such as minor motoring offences), but one may also be used for regulatory investigations (e.g. trading standards, food hygiene, health and safety, tax investigations) technical offences and/or private prosecutions that do not involve the police (who can simply charge a defendant to instigate a prosecution).
A summons is issued after "an information" is laid before a magistrates' court. This is sealed by the court and sent to a defendant requiring him/her to attend court on a certain day.
The term "summons" was previously also used for the document that instigated civil proceedings, but this document is now referred to as a "claim form".
The Supreme Court of the United Kingdom is the highest appeal court in England and Wales, replacing the role of the House of Lords in 2009.
The Supreme Court largely hears appeals from the Court of Appeal. In limited circumstances, it can hear civil appeals direct from the High Court.
The Supreme Court is situated on Parliament Square in London and cases are heard by "Justices of the Supreme Court".
A surety is a pledge given by an individual that he will ensure a defendant's attendance at the next court hearing or forfeit a sum of money to the court (hence the term "standing as a surety").
Such a pledge is given where a surety is required under the defendant's conditions of bail.
If a defendant subsequently fails to attend court then the individual standing surety will need to attend court to explain why he/she should not forfeit the sum of money.
A suspect is the (or one of the) target(s) of an investigation. He/she is referred to as a suspect as the investigating body (normally the police) suspect him/her have committed an offence.
A suspect is not a defendant until he/she is charged with an offence.
A suspended sentence is a sentence whereby a period of imprisonment is imposed, but does not automatically take effect. The court may also impose one or more requirements (similar to those under a community order). The custodial sentence only takes effect (i.e. has to be served) if:-
- the defendant commits a further offence during the period of suspension; or
- the defendant fails, without reasonable excuse, to comply with the requirement(s).
An example of a suspended sentence might be where a defendant is sentenced to six months' imprisonment suspended for 18 months with a requirement that he/she undertake 30 hours of unpaid work. Providing the defendant does not commit a further offence within the 18 month period and undertakes the 30 hours of unpaid work, he/she will not have to serve the period of imprisonment. If on the other hand the defendant fails to comply with the unpaid work requirement or commits a further offence during the period of imprisonment then he/she is liable to be found in breach of the suspended sentence and the six-month custodial sentence may take effect (in addition to any sentence passed for the new offence)