Burton Copeland Solicitors

HSE to charge...

2011-08-11T04:16:00.000-07:00

The Health and Safety Executive (HSE) has published a consultation document revealing details of its plans to charge dutyholders for serving enforcement notices and for providing advice to remedy health and safety failings that do not warrant prosecution. The cost recovery system will see inspectors charge businesses whenever they find a “material breach” of the law.

If a” material breach” is found charges will be calculated retrospectively from the start of the visit up to and including the time spent to ensure the breach has been remedied. A provisional hourly rate of £133 is proposed and the estimated average costs are as follows;

a) No costs for an inspection with no action taken.

b) £750 for an inspection which results in a letter.

c) £1500 for an inspection which results in an enforcement notice.

d) £750 through to several thousands or in extreme cases tens of thousands of pounds where investigations ensue.

The consultation raises a number of issues. Firstly, there is no definition of what constitutes a” material breach”. An HSE spokesman has indicated that too much depends on context to provide a definition. This clearly will allow for discussion between the dutyholder or its legal representative and the HSE as to what is “material” but also might open the door to a possible scenario whereby a dutyholder may be persuaded that a breach should be accepted as” material” to avoid prosecution.

Secondly, the provisions for disputing the imposition of such charges propose that disputes are resolved by an HSE principal inspector and then by a senior manager with the cost of the time spent added to the charge if the judgment goes against the dutyholder. This does not present a fair impartial dispute resolution system and is likely to attract criticism from respondents to the consultation.

Thirdly, the charging system will introduce a new dynamic to the relationship between inspectors and dutyholders with the obvious risk that the relationship will become less constructive as dutyholders may believe the scheme is money making exercise and question the inspectors’ impartiality. This will be exacerbated if targets are set.

The scheme does not include businesses such as shops and offices whose compliance is governed by local authorities as local authorities have shown little enthusiasm for the proposals.

Make no mistake, despite the apparent flaws, cost recovery will go ahead .The suggested yield is some £43 million per year and the HSE suggest that charging could be implemented as soon as next April. Be warned and be prepared.

Tim Andrew is Head of Regulatory Law at Burton Copeland LLP

Domestic Violence Protection Orders

2011-07-08T06:55:00.000-07:00

As of 30th June 2011, police in Greater Manchester, West Mercia and Wiltshire have been afforded additional powers to prevent people arrested for domestic violence offences & released with no charge contacting the original complainant or attending at their address for a period of between 14 to 28 days following release.

This pilot scheme introduces powers for the police to serve domestic violence protection notices (DVPNs) on suspects which serve a summons for them to attend Court. The Court will then hear an application for a Domestic Violence Protection Order (DVPO), which must be heard within 48 hours of service of the DVPN, which can be imposed with whatever conditions the Court feel necessary to protect the injured party from violence or threat of violence.

The penalties for breach of the order fall within the provisions of s63 Magistrates Court Act 1980, breach of a civil order and can result in a maximum sentence of either £5000 or 2 months imprisonment.

This does raise the question of fairness? We could end up with a situation whereby someone with no previous convictions and having been released no further action from the police station, receiving a custodial sentence and therefore a criminal record for breach of a DVPO when he or she has committed no substantive offence in the first place. Whilst I understand the need for protection of victims of domestic violence, surely this is nonsensical.

The guidelines appear to suggest that whilst the views of the injured party are taken into account when considering the imposition of a DVPO, the order can be imposed without the support of that injured party. What if it isn't supported by the original complainant? Again, a custodial sentence could be imposed for breach even where neither party requests the imposition of the order.

It remains to be seen how these will work in practice and how often the orders will be utilised given the cost implications of serving notices and representation at the subsequent hearings. So are these orders simply another draconian measure in an already nonsensical domestic violence policy, or a necessary measure to protect the victims of domestic violence?

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Stopping the clock - the Hookway judgment

2011-06-29T02:02:00.000-07:00

The custody clock as we know it is no more.

The judgment of Mr Justice McCombe in the case of R (on the application of Chief Constable of Manchester)v Salford Magistrates’ Court [2011] EWHC 1578 brought police and lawyers alike to a screeching halt. ACPO have since released guidance as to their reading of it. Both the judgment and guidance can be found here (courtesy of Andrew Keogh).

In brief:

The interested party, then accused party Paul Hookway, had been arrested for murder. Prior to the expiry of the initial 24 hours, a superintendent’s extension of 12 hours had been granted. The police had then gone before the Justices at Salford Magistrates’ Court for a warrant of further detention and been granted a further 36 hours. He was subsequently police bailed a number of times and some months later the police tried to apply for an extension of the warrant. The legal advisor said that they could not have an extension as the warrant had expired and the application was refused by DJ Feinstein.

On Judicial Review by the police, the decision of the DJ was upheld. The majority of his judgment related to the WFD, stating specifically that the warrant runs for no more than 36 hours from the point at which it is issued by the court, as opposed to just adding time to an ongoing clock which can be stopped by bailing someone.

He also discussed however (paras 25-27) the general practice of bailing a person from the police station to return at a later point. He says at paragraph 26 that ‘section 47(6) cannot alter the express limits on the court’s powers set out in section 44(3)’ ie that whilst the police might have the power to grant bail, even a full extension by the Magistrates Court could not end later that 96 hours after the relevant time. He said that “if a person has been released on bail before the expiry of the statutory period…and is bailed to return within that period… if time in fact remains it can be used up.”

So essentially, the judge is saying that the initial 24 hour detention period means 24 hours from the time of detention, literally. Time is constantly ticking… and once it’s up, it’s up. It’s not sitting in the PACE bank to be used over a period of weeks and months as has previously been the case.

Whilst not strictly outlawing police bail, the judgment states that the police can still bail but only if the suspect returns within the statutory period (ie 24 hours unless extension already granted, to a maximum of 96 hours). It remains to be seen whether a decision will ever be made to bail for a matter of hours.

The only exception to this rule, according to ACPO, is when a suspect is bailed for the purposes of CPS advice under s37(7), when they can be detained to be charged following such a decision. This section stipulates that this can happen if "the custody officer determines that he has before him sufficient evidence to charge the person arrested with the offence for which he was arrested", but it may be interesting to see whether we see an increase in cases "bailed for CPS advice" rather than for further evidence to be obtained.

The alternative, it seems, is to NFA a matter and arrest on new evidence later. The ACPO guidance accepts that “new” is a loose term. One wonders how many ways this will be interpreted, and how many s78 arguments will result from questionable decisions in relation to this.

It is understood that the Home Office is planning emergency legislation to overturn the ruling, but for now it will be interesting to see how strictly it is followed and whether it is of benefit or not to those in criminal defence.

Kate Harney works for the Crown Court Department of Burton Copeland.

Continuous Insurance Enforcement - money spinning or money saving?

2011-06-23T01:31:00.000-07:00

Continuous Insurance Enforcement (CIE) came in to force, almost silently on 20 June 2011. These provisions affect all motorists as it gives the DVLA power to clamp, seize and destroy a vehicle if it does not have valid insurance. Fines and Court proceedings can also be issued. The regulations apply to any vehicle, even if they are not being used on the road, unless you possess a Statutory Off Road Notice (SORN).

It is said that these provisions will reduce incidents of uninsured driving and the related cost of uninsured claims, estimated to be £500 million per annum. This cost is currently being paid by honest motorists through their insurance premiums, so can we all assume our insurance expenditure will reduce next year? Seems unlikely.

Over recent years, police forces have utilised the Motor Insurance Database together with Automatic Number Plate Recognition, to apprehend people driving without insurance and so have successfully reduced the prevalence of this offence. This initiative arguably set out to achieve similar goals to CIE and despite its success; insurance premiums have shown a marked increase over the last 12 months.

Whilst appreciating certain aspects of this new scheme, some would criticise this as a money spinning system, penalising motorists for not spending hundreds of pounds insuring vehicles that are not even being driven or kept on public roads. It could also be said that despite the premise for the scheme, it will yield no benefit, financial or otherwise to the average motorist but will enhance revenue for insurance companies and government agencies.

It will be interesting to see whether CIE does, as intended, reduce the number of uninsured drivers over the next 12 months. Moreover, to observe how any benefit will be passed on to honest motorists.

So… money saving or money spinning?

Nick Terry works for DrivingOffence.com, a division of Burton Copeland solicitors.

Facebook Juror

2011-06-17T03:09:00.000-07:00

Damian Wall of Burton Copeland acted for Joanne Fraill in this landmark case brought by the Attorney General. Mrs Fraill received a sentence of 8 months imprisonment, the maximum sentence was 2 years and given the seriousness of the offences the outcome was better than expected.

The case was unique, the first of its kind involving a contempt of court using the internet and Facebook. The legal aspects were also new and challenging involving a blend of civil and criminal law. The judgment from the Lord Chief Justice Lord Judge is likely to impact on future cases and potentially on how jury trials are conducted in the future.

YouTube - Facebook Juror

BBC News Report

Daily Mail report

Facebook juror - MSN News UK

Statement from 'Facebook Juror'

Woman gets 8 months jail for sending Facebook message

First Blog

2011-06-13T04:15:00.000-07:00

Welcome to Burton Copelands Blog. Here you will find blogs and comments on current issues which we hope you will find informative and useful.