FREQUENTLY ASKED QUESTIONS
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Should I be represented? I intend to admit the allegations, is there any point in being represented?
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Is there any point in instructing a Solicitor to represent me in an interview?
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Do I have to answer questions in interview? What is the right to silence?
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I have heard that free legal aid is available to everybody. Is this the case?
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Can I get legal aid to defend disciplinary proceedings brought by my professional body?
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If the Prosecution obtain a Restraint Order, what does this mean?
Should I be represented? I intend to admit the allegations, is there any point in being represented?
It is always worth checking whether or not it is worth being represented and there are a number of reasons for this. Just because you know what happened doesn’t mean that the Prosecution or the Court will accept your version of events. If there is a difference, then the Court may insist on having a trial of the facts, at the end of which the Judge is entitled to reach any conclusion he likes. Often, we can negotiate the basis on which you are pleading guilty and this will limit the opportunities of the Court to find that the case is more serious.
Sometimes, even when you believe that you are guilty of the offence, there may be a technical defence because the Prosecution have not managed to prove an essential element of the case.
Then there is the question of the damage limitation. The Court has a lot of discretion as to what sort of penalty to impose. We may be able to reduce the seriousness and keep the penalty imposed down to a minimum. Many offences involve the possibility of prison sentences being imposed and, nowadays, financial orders can be extreme, even to the point of ordering you to pay back money you no longer have with periods of imprisonment in default.
Also, sentencing is often affected by the financial values in a case and, as with other aspects of mitigation, we know the significant persuasive areas and how to present your case to your best advantage.
There are technical issues in respect of the choice of which Court deals with your case as well as areas which should be emphasised and others which should not. We can make the difference between going to prison and not in many cases.
It is for the Prosecution to prove their case and, if they cannot do this, you should not be convicted.
We try to provide value for money for our clients and we will give you an honest opinion as to whether or not we can make a difference in your case which merits you involving a Solicitor on your behalf. Some people, however, want to have the experience and moral support on their side but it will be an individual choice in each case. It is for you, as an individual, to weigh up the options but do so in the light of the best possible advice.
Remember the maxim that just because you may have made one mistake doesn’t mean you have to make another.
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Is there any point in instructing a Solicitor to represent me in an interview?
Often, we are told that a client has nothing to hide but, even where this is the case, you should bear in mind that an interview is an adversarial procedure where the interviewer is not on your side.
If an interview is under caution, it is expressly part of an evidence gathering procedure to provide a case against you.
Often, interviewers are highly trained and skilled in their craft. Often, subtle techniques will be used to put you at a disadvantage, often with the intention of making you reveal more than you wish.
If you are unrepresented, it is very easy for an interview to move on from one subject to another or to cover seemingly unimportant, but often vitally important, areas of evidence.
If, for example, the interview is taking place in a Police Station, often clients will wish to avoid delay in the hope that it will speed up their release. Waiting for a Solicitor to arrive to look after your interests is a sound investment and an hour spent at this stage in the investigation may save you many hours at a later stage and may even avoid you having to go through the ordeal of a trial.
Remember, what is said in interview, and sometimes what is not said in interview, can have a very significant effect on events and trials years later. It is worth taking the position seriously and in making an investment of both time and, if necessary, funding to ensure that you have maximum protection.
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I have been invited to go for interview. Should I attend?
The answer to this question is always one which will depend on a number of facts.
The first thing to be established is whether or not you can be compelled to attend if you refuse. Compulsion will normally take the form of you being arrested. However, many of the more than 50 agencies who can, and do, prosecute in the Criminal Courts do not have the power to arrest and therefore to compel attendance and interview.
There are sometimes technical reasons why it is better not to attend at interview and, certainly, you should only speak in interview in the event that you are going to tell the truth.
You should ask your Solicitor for advice before attending a voluntary interview. Even though the interview is on a voluntary basis, it will usually be for the purpose of gathering information and, usually, it is to gather information against you as a potential suspect.
There are some invitations which should be accepted and there are several where you have no option but to co-operate and answer questions, failing which you commit a criminal offence which is punishable by imprisonment. Your Solicitor will be able to advise you about these.
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Do I have to answer questions in interview? What is the right to silence?
It is an old maxim of the law that no man should be required to condemn himself. In other words, a person who is being interviewed as a suspect should not have to answer questions.
This ancient right to silence when being interviewed has been eroded recently and the new warning at the start of an interview states that, “You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something you later rely on in Court. Anything you do say may be given in evidence
In other words, the Judge may direct the Jury that they would be entitled to infer that the evidence being given in Court has been invented by you in the intervening period.
However, there are occasions when silence remains the best answer, as it is still an obligation of the Prosecution to prove their case and, sometimes, without co-operation from the suspect, the need for a trial can be avoided or, even if a trial is to take place, the suspect individual is in a stronger position.
Obviously, this is a case for specialist advice on each occasion and we are equipped to provide you with that advice and to warn you of the consequences of each of the options that you will have.
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Can the Investigator enter my house or office?
Once again, the answer to this question depends upon the powers granted by Parliament to the individual investigating body.
Most Investigators will require a warrant from the Court in order to enter the premises or to seize material.
The lack of a warrant and the absence of a power will not prevent an Investigator asking you to provide materials by consent.
Generally speaking, a warrant can compel you to release confidential information but cannot compel you to release information which is legally privileged.
The area of legal professional privilege is a highly technical and complex area and you should always seek immediate advice from us before agreeing to release privileged material.
Generally, material that has come from your Solicitors, especially if it is for the purpose of providing you with advice and especially if it is for advice in connection with potential litigation, is classed as privileged and cannot be accessed by an Investigator.
However, in the event that your Solicitor has been used for a criminal purpose, then no privilege can attach to any documentation, and so that protection is removed.
If you are going to provide documents, then be careful to ensure that a record is kept of those documents which are seized. Also, you are entitled to access copies of those documents.
Nowadays, the material that is seized will usually include all the computers on the premises and this can have the effect of shutting down the business until these can be retrieved. The early involvement of us in this process can reduce the disruption very considerably.
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I have heard that free legal aid is available to everybody. Is this the case?
There are a number of occasions when individuals are entitled to legal aid but the scope of legal aid has reduced dramatically over recent years.
A company is never entitled to legal aid as legal aid only covers individuals. However, in certain circumstances, legal aid is available to employees and Company Directors.
At present, the whole legal aid system is being reviewed and we cannot guarantee that we will offer our services on the basis of legal aid being available. We will have to decide this and advise you on a case-by-case basis.
At present, legal aid is available to cover anybody who is under arrest and being questioned at a Police Station. However, that legal aid does not cover work which is undertaken outside the Police Station in preparation for that visit.
As a consequence, visits to your Solicitor to provide instructions at their office or to consider documents prior to an interview is not covered under that legal aid scheme.
If you have been at the Police Station and had legal aid, then that legal aid does not cover work which is undertaken between that Police Station visit and the next one.
If you are charged with a criminal offence, then the case will start in the Magistrates’ Court where a means test to a legal aid application will apply. At present, this is a complicated process and most business people will find themselves outside the scope of free legal aid.
However, in the event that a case proceeds to the Crown Court, then, currently, legal aid is available without a contribution being made at the outset. However, you will be required to make a full declaration of your assets and income and, in the event that you are convicted of the offence, either by admission or at the conclusion of the trial, the Judge should order that you meet your legal aid costs out of your assets as well as ordering you to pay at least a contribution towards the Prosecution’s costs in addition to any other penalty or sentence that is imposed.
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When is a case serious?
We realise that most facing any sort of investigation find the experience very daunting and very worrying. That is the first way in which to judge whether the case is serious, by how much it matters to you.
Nowadays, the consequences of criminal convictions can be very far reaching and the number of financial orders that the Courts are obliged to investigate and make is far more extensive than used to be the case.
Professional legal advice should therefore be sought at the earliest possible opportunity to enable us to assist you in assessing the seriousness of your case.
The Courts are required to confiscate any benefit that a Defendant has acquired as a result of any criminal activity and there are circumstances in which it will be assumed that you still retain control of assets which are believed to have been in your possession and it will be for you to prove that those assets were not or are not under your control.
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Can I get legal aid to defend disciplinary proceedings brought by my professional body?
The answer is no because legal aid is not available for such proceedings even though they can result in you losing your livelihood.
It may be possible to achieve some funding as a result of legal expense insurance. Many legal expense insurers try to stipulate that you should use one of their Panel Solicitors to represent you. However, it is an essential part of the Law Society Rules that you have freedom of choice of the Solicitor that represents you and you can, and should, insist on using a Solicitor of your choice.
We are prepared to conduct cases which are funded by legal expense insurance.
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What is legal expense insurance?
Although it is possible to buy a specific policy to cover legal expenses in the event of proceedings being instituted against you, many people will find that this is included in a policy that they have already purchased.
Many household contents policies and some road traffic policies contain legal expense insurance. In addition, professional indemnity insurance policies include cover in some circumstances.
You should always check your policies and consult us if you have any doubts on whether or not work will be covered by your policy.
Usually, insurers impose strict conditions on the cover that they offer. You will normally need to obtain prior consent from the insurers as, often, cover is not retrospective.
Some insurers offer cover at a fixed hourly rate and, where that is not the equivalent of our charging rates, the legal expense insurance can be taken as a contribution towards our rates. Some insurers offer a full indemnity for the charges made.
If you have Directors and Officers insurers, it is likely that you will achieve some insurance cover for your fees in the event that you make contact with the insurers at the outset.
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If the Prosecution obtain a Restraint Order, what does this mean?
A Restraint Order is an injunction preventing you from accessing your assets except for a limited weekly sum to cover your essential living expenses.
Usually, the Restraint Order requires you to file an Affidavit in response setting out details of all your assets and where they are held.
Usually, Restraint Orders which are injunctions are obtained without you being given prior warning. It is open to you to return to the Court to challenge the Order or to challenge parts of it including, for example, the amount that is allowed for weekly living expenses.
Whether you are able to secure release of funds to cover your legal expenses will be governed by the Act of Parliament under which the Restraint Order has been obtained. Commonly nowadays, Restraint Orders are obtained under legislation which prevents you from accessing your frozen assets to fund your defence.
In such cases, a very limited amount of funding is available under a legal aid scheme but, generally, this is insufficient for you to mount any realistic defence.
Many clients rely upon family or friends to provide funding for them.
A breach of the Restraint Order is a contempt of Court and can result in immediate imprisonment until that contempt is purged. Orders usually come with a notice explaining the penalties for breaching the Order.
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I owe the tax man thousands of pounds in unpaid tax because I have undeclared my income over a significant period. Will I be prosecuted?
It is often possible to make arrangements with HM Revenue & Customs for them to accept a financial settlement rather than to institute criminal proceedings.
Failure to pay the correct tax is a criminal offence and a deliberate failure to pay tax is a common law offence of cheating the Revenue. This is an offence usually dealt with in the Crown Court, where imprisonment is often considered as a penalty.
This is in addition to the Court’s powers being exercised to order confiscation of the tax concerned. In the case of an individual, it will be confiscation of the tax and, in the case of a company, it will be an order for confiscation of the sum on which the tax was payable, which of course is a higher amount.
Whether or not the Revenue are likely to institute criminal proceedings, as opposed to accepting a civil settlement, depends on a number of factors about which we can advise you.
If, however, we are able to reach an agreement with the Revenue that they will deal with it on a civil basis, it will be important that full co-operation is afforded because failure to do so is likely to result in the agreement being withdrawn, and will trigger a full investigation and possibly a criminal charge.
The way in which the approach is made to HMRC can have a significant effect upon the outcome. It is important, therefore, that you contact us before you contact your local Tax Office.
Where a civil settlement is achieved, you will be liable to pay interest on the sums due and a penalty of up to 100% of the tax in addition to the original tax due. Often, we are able to negotiate a reduction in the amount of penalties.
This arrangement is available in respect of all types of tax including Income Tax, Corporation Tax and Value Added Tax.
Factors on whether or not an arrangement will be possible include the level of co-operation, whether the disclosure is a voluntary one or triggered by the knowledge that the Revenue were already investigating, and whether or not you are a person in a position of trust, such as a Solicitor or other professional.
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I have funded my own case and have won. Will I recover all my costs from the Court or the other side?
The short answer to this question is no. The reason for this is that costs to be paid to a successful litigant or under a Defendant’s Costs Order are nowadays paid on a scale rather than to reflect your own out of pocket expenses.
As a consequence, a successful litigant does not recover all the costs they have outlaid but only a contribution towards them.
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