Court decision re MPs' expenses prosecutions

An issue has arisen as to whether there is a legal and constitutional bar on the trial in the courts of MPs and Members of the House of Lords in relation to alleged dishonesty in their claims for expenses and allowances.

Today the Crown Court has ruled that there is no bar on those prosecutions.

The full judgment is available online here.

It will be seen that the Court found that Article 9 of the  Bill of Rights 1689 is still good law.

It also found that Article to be but a part of a broader privilege in common law.  (Common law is the body of law established in England & Wales over many centuries, simply because it is what has always been recognised as just.  It can be contrasted with statute law which is law set down in statutes passed by parliament.)

However the Court found the purpose of that privilege was to allow Parliament to carry out its functions unhindered by the threat of legal action in the Courts and to preserve the separation of powers and exclusive jurisdictions of Parliament on the one hand, and the Courts on the other.

Nevertheless it was common ground between the Crown and the defendants in this case that 'ordinary crime', such as an act of violence carried out within the Palace of Westminster but unconnected with any Parliamentary activity, could be dealt with by the Courts.

The completion of a claim form for expenses and allowances by an MP or Member of the House of Lords was not however, in the Court's view, an element of the "proceedings" of Parliament.

That being the case there was no bar to the trial of the defendants on allegations of false accounting relating to the completion of those claim forms.

The defendants are expected to appeal this decision to the Court of Appeal.

Of course the Court's decision today has nothing to do with whether these particular defendants are guilty or innocent of the dishonesty which is alleged.  The judge pointed out that any comment on that issue could prejudice a fair trial for the defendants (and therefore should be avoided).

David

Comments
cymraeg_draig's picture

Taking the Micky

cymraeg_draig | | Permalink

Parliamentary privalege is to protect MP's right to speak freely.  To attempt to claim that this privalege extends to claims for expenses is in my view, nothing short of "taking the Micky".

This attempt to evade prosecution, in my view, smacks of desparation and I am amazed that they found any counsel willing to argue such a perverse argument.  One wonders where they believe parliamentary privalege to end?  Perhaps if Mr Cameron draws a revolver and shoots Harriet Harmen he will be able to evade prosecution by claiming parliamentary privalege?  

No doubt if made to pay costs they will try to make a late claim on expenses claimimg it to be costs incurred as a result of their having been MP's.

davidwinch's picture

What are parliamentary "proceedings"?

davidwinch | | Permalink

Apparently counsel on both sides agreed that parliamentary "proceedings" include: (i) debates in either House of Parliament, (ii) matters dealt with in parliamentary committees, (iii) resolutions passed in writing without live debate (including the resolutions setting up the expenses and allowances schemes and making the rules as to what was permitted to be claimed), and (iv) administration of the expenses and allowances scheme by staff employed by parliament.

However the two sides differed as to whether completing the forms to submit the claims for expenses and allowances also fell within "proceedings".  One defence counsel pointed out that if, instead of submitting a form, his client had read out his claim in parliament then it would be privileged.  The judge's reply in effect was, "But he DIDN'T read it out in Parliament, did he?".

Actually the judge was not himself convinced that (iv) was part of "proceedings" but he said even if it was:

"The fact that it is the submission of the claim form that sets the machinery of Parliament in motion does not make it part of that machinery just as putting a coin in a slot machine does not make the coin part of the mechanism of the slot machine just because it initiates the process."

Quite!

David

Confiscation Orders ! I say

Anonymous | | Permalink

I hope these and all the other MPS get convicted, be servied with criminal life style confiscation orders. Hopefully they won't have a cashbook going  6 years and therefore won't be able to prove where their assets came from. Than they can face confiscation of everything they own. After all they passed the law.

How can a millionarie justify claiming expenses of £900 per month so that he can give the money to his partner- civil or otherwise?

The same MPS cry foul if a single mother claims £40 quid per week in benefit or encourage prosecution of an unemployed builder/plumber/taxidriver/assemeblyworker for claimimg social security benifts when perhaps not quite entitled to.

Let these 'MPS' face the full force of the law that they have passed and by which ordinary folks are punished with alarming frequency. Some of these ordinary fols lost their jobs has MPS were to busy awarding honours to the likes Fred The shred and further more likes of Fred the Shred were encouraging even eticing these ordinary folks to borrow well beyond theire means in order that Fred The shreds of this country can show heft loan book with forecast future interest receipts (profit) and get handsome or vuilagr bonuses and pension pots.

Centruies ago  a genteleman by the name of Guy Fawkes foresaw all these?

 

 

davidwinch's picture

And another thing . . .

davidwinch | | Permalink

As it happens, if the four defendants are, in due course, convicted of all the offences of which they are charged then some (but not all) of them will be deemed to have a 'criminal lifestyle' (see section 75 Proceeds of Crime Act 2002).

But there is something else.  It is clear from the Crown Court judgment that no-one doubts that the Bill of Rights 1689 is still the law.  Indeed it is to be regarded as 'constitutional law' and, for that reason, carries particular weight.

As a general rule, if a new Act of Parliament is incompatible with an existing Act (i.e. they can't both be right) then the legal assumption is made that, by necessary implication, the new Act in effect amends the old Act even though it does not explicitly say so.  That resolves the incompatibility.

But if the old Act is 'constitutional' then the position is reversed.  The old Act 'trumps' the new Act - which is therefore invalid insofar as it is incompatible with the old Act.

(Bear with me on this . . .)

The Bill of Rights 1689 also contains this:

The Subject’s Rights.

. . .

Grants of Forfeitures.

That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegall and void.

 

Now these days we do have forfeiture of cash under Proceeds of Crime Act 2002 where there has been no conviction.  Is that "illegall and void"?  Or should the Bill of Rights be read as meaning 'fines and forfeitures without due process in Court are illegal and void'?  In which case forfeiture under PoCA 2002 is OK.

Well, put your answers on a postcard . . .

David

stepurhan's picture

Good news and clarification please

stepurhan | | Permalink

I think the news that they will be prosecuted is a good thing for government as a whole. The whole expenses scandal has severely damaged the reputation of parliament. If we can't trust them with something simple like expenses then how can we trust them with the big stuff. By saying that wrong-doing in this context will be subject to the law as for everyone else there is a chance that faith can be restored. I agree that the processing of claims as part of proceedings seems a stretch, even though the judge ultimately accepted it. Good analogy for dismissing that as an argument though.

David, could you clarify the POCA provision. You say that forfeiture can happen without conviction but that adding "without due process of Court" to the Bill of Rights would make such forfeitures acceptable. Isn't the securing of a conviction the due process of court or have I misread your post somehow?

davidwinch's picture

Forfeiture without conviction

davidwinch | | Permalink

Stephen

Suppose you are walking down the street minding your own business, with £1,500 in cash in your pocket.  You are stopped by a police officer who says you match the description of someone (one of two people) seen 5 minutes ago running from a scene of crime (a robbery) with a weapon.

The police officer asks about the bulge in your jacket pocket, you produce the cash (showing the bulge is not a weapon).  The officer then seizes the cash on suspicion that it may be proceeds of crime (section 294 PoCA 2002) perhaps some of the cash from the robbery.

That cash may subsequently be forfeit (s298) but only after an application has been made to a Magistrates' Court to authorise that.  That is by way of a hearing at which (if you chose to attend) you can put forward an explanation of the (legitimate) source of the cash.  It is for the Magistrates to decide whether or not the cash should be forfeit.

However the cash may be forfeit without your having been charged or found guilty of any offence.  Basically the Magistrates decide, on a balance of probabilities, whether the cash is proceeds of crime or intended for use in crime.

So what I am saying is that you have not been convicted but the forfeiture (if indeed the Magistrates do order forfeiture of the cash) has followed due process in Court.

Does that clarify that for you?

(The above example is a bit over-simplified.  For example, if you can satisfy the police at any stage that the cash is legitimate they can return it to you without troubling the Magistrates.  For example if you can explain how you came to have the cash, and particularly if you can produce documents or a witness in support.  Incidentally the seizure power at one time existed only at ports and airports, but it has existed throughout the country since PoCA 2002.)

Of course if you have actually been convicted of a crime then we are in a whole new ball game and we might be looking at confiscation under s6 PoCA 2002 (which is quite different).

The underlying purpose of the Bill of Rights 1689 was to put limits on the power of the King to do whatever he felt like to his subjects and their assets.  Arguably that purpose is achieved by making forfeiture subject to a hearing in the (Magistrates') Courts.  So if one views the Bill of Rights from that perspective the PoCA 2002 provisions look OK.  On the other hand if you read the word "conviction" to mean exactly that then the PoCA 2002 provisions re cash forfeiture are 'unconstitutional' and inoperative.

David

cymraeg_draig's picture

HRA

cymraeg_draig | | Permalink

Your example is fine David - EXCEPT - the seizure of any money, or indeed anything else, prior to an actual conviction by a court of law is incompatible with the HRA Article 6.  With the exception of course of anything seized as evidence.

It really is time the position was clarrified, and indeed simplified.

My own view for what it is worth is that it is ALWAYS wrong to inflict anything which could be termed as "punishment" be that by seizure or by incarceration before a peson has had a fair trial and been properly convicted. Indeed I consider it a national discgrace that prisoners on remand, half of whome will subsequently be acquitted, should be held in prisons. There should be at the very least separate remand facilities where those being held are given the maximum amount of freedom possible compatible with actually holding them for trial. 

 

davidwinch's picture

Incompatible with Article 6?

davidwinch | | Permalink

C_D

I am not sure I agree with you that forfeiture is incompatible with Article 6 of the Human Rights Act 1998.

Article 6 says:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law".

The procedure for forfeiture (although not a criminal charge) undoubtedly affects the 'civil rights and obligations' of an individual as money is taken off him and not returned.  But the process does involve a 'fair and public hearing' in the Magistrates' Court 'by an independent and impartial tribunal established by law'.

Under PoCA 2002 the cash may not be held for more than 2 years (s295).

So it looks to me as if the requirements of Article 6 are satisfied.

It may be that you also had in mind the first protocol and in particular:

"Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties."

But again I think if you take into account the words "except in the public interest and subject to the conditions provided for by law" the forfeiture conditions do comply since these are requirements of the law considered to be in the public interest in the fight against crime.

David

cymraeg_draig's picture

Legally they comply - but morally they dont.

cymraeg_draig | | Permalink

 

Like the MLR the power to conficate is an appalling piece of legislation which goes against natural justice.  One hopes that this government, which has already listened to the profession regarding anonymity for those accused of rape, will also lisaten regarding these issues.

There are indications that the money laudering regulations and inded large parts of RIPA will be torn up or redrafted. There does seem to be a willingness to roll back Labours police state and to put power back in the hands of the courts where it belongs.

As regards hearing before Magistrates there is a huge hole in that argument. Magistrates are amateurs. Their powers are limited to a maximum fine level of £5,000.  It is therefore illogical, and potentially unlawful as it has yet to be challenged, to allow someone whose authrity to fine is limited to £5,000 to then approve the seizing of £millions.

Personally I wouldnt trust the average magistrate to get the day of the wek right.  Indeed we have in our "collection" a wtitten judgement by a magistrate in which she states that she finds that the defendant was at a particular location on 31st November 2006.  I think that really says it all about magistrates doesnt it.

 

 

Hint - just in case anyone is wondering - there are only 30 days in November.

 

stepurhan's picture

So I did understand it correctly

stepurhan | | Permalink

The courts don't prove you're involved in a crime but the money (or whatever it may be) can be taken away because it seems likely it was crime-related. This seems to fly in the face of the principle of English law, "innocent until proven guilty". Effectively the person having property confiscated is being assumed to be guilty (though of an undefined crime). If there is insufficient evidence to convict of a crime then the defendant should be considered innocent at all levels.

davidwinch's picture

I'm know I am being picky . . .

davidwinch | | Permalink

Stephen

I am being picky here, but we have two different concepts, one is called "forfeiture" and the other "confiscation".

An innocent person can have "cash" (as defined by s289(6) and (7) which includes notes and coins and also cheques, bankers drafts etc)  in excess of the "minimum amount" (currently £1,000) which is found in their possession (in their pocket, in their car, in their house, etc) seized (i.e. physically taken away) by police or customs officers if the officer has reasonable grounds for suspecting that the cash is "recoverable property" (essentially proceeds of crime or cash derived from proceeds of crime) or is intended to be used in crime.  That cash may then be "forfeit" if the Magistrates' Court is satisfied on the balance of probabilities that the cash is indeed recoverable property or intended for use in crime.  That is forfeiture.

Forfeiture does not involve any finding that any person has committed a criminal offence. 

Now put that out of your mind and let's turn to "confiscation".

Where a person has been convicted of one or more criminal offences from which they have derived a 'benefit' (such as drug trafficking, theft, selling fake clothes or DVDs, benefit fraud, tax evasion, and hundreds more offences by which a person gets or retains an asset through crime - but not , for example, brawling with football fans outside the pub) then - in addition to the normal punishment for the offence - they may be made subject to a confiscation order.  The criminal conviction is a necessary prerequisite to confiscation.

A confiscation order requires the convicted person to pay a sum of money (so does NOT involve seizing of assets) equal to the lower of their "benefit" and their "available amount".  (These are two different figures, each is worked out absolutely independently of the other.)

Their "available amount" is (broadly speaking) the value of their gross assets less secured liabilities. (And so will include for example the value of their home less the mortgage on it together with the value of their car, money in bank accounts, etc but without any deduction for credit cards debts etc.)

Their 'benefit' is what they have 'obtained' by crime (i.e. gross amounts received, without any deductions for costs incurred) and - where a person is deemed to have a 'criminal lifestyle', see s75 - includes their 'assumed benefit' from crime - that is anything they currently have, plus anything they have received or spent since the 'relevant day' (i.e. expenditure funded from unknown sources is ADDED to benefit, not deducted from it).  (The 'assumptions' are set out in s10.)  The 'relevant day' is normally the day six years prior to the day on which they were charged with the offence of which they have been convicted.

The 'benefit' figure can get to be substantial, particularly in 'criminal lifestyle' cases where it includes 'assumed benefit'.

However any income, expenditure or asset which can be shown, on the balance of probabilities, to be legitimate is then excluded from 'benefit' (but not from 'available amount').  Ultimately a decision is made on this by a judge in a hearing in the Crown Court.

So, technically, it is not correct to say in relation to forfeiture that "the person having property confiscated is being assumed to be guilty (though of an undefined crime)" it is the CASH which is, if you like, 'guilty' - not the person from whom it was seized.

In confiscation, on the other hand, where a person has a 'criminal lifestyle' it would be fair to say that "the person having property confiscated is being assumed to be guilty (though of an undefined crime)" or, more accurately, the person having property confiscated is being assumed to be guilty of additional undefined crimes.

Is that clear as mud now?

David

cymraeg_draig's picture

guilty until proved innocent

cymraeg_draig | | Permalink

The bottom line remains the same David - forfeiture amounts to the removal of ones property (cash) without a convction to justify it.

And I still say its perverse that an ameteur magistrate can authorise the forfeiture of, say £100,000, yet, is only authorised to levy fines up to £5,000.

By removing any property, or, denying you the freedom to spend or dispose of your money in any way you see fit to, the system is effectively punishing you and that amounts to being found "guilty until proved innocent". This is utterly repugnant to any right thinking person and is something that brings disgrace on our legal system. 

 

 

 

 

stepurhan's picture

Sorry not to be clear david

stepurhan | | Permalink

Thank you for the detailed explanation of the difference. I did understand already but no knowledge is wasted and the full explanation was informative.

My concern, as already expressed by CD is that, admittedly only in respect of the particular property in question, there is no distinction. I owned something before. I no longer own it. The fact that the courts can't take any more from me is scant comfort if they've taken a significant amount of money or other property that was legitimately mine. I also appreciate that forfeiture can be prevented by proving a legitimate source (and I'd hope I'd be in a position to do that if I was carrying a lot around) but that puts the burden of proof on the innocent to prove themselves so.

Back to the original subject. Whilst I welcome actual cases being brought I also hope that these are fair. It would be as wrong for these MPs to be convicted without sufficient proof as it would be for them to have walked away scot-free if they have committed fraud via the expenses system. I fear how it may be presented in the media if no convictions occur though.

cymraeg_draig's picture

costs

cymraeg_draig | | Permalink

Whilst I welcome actual cases being brought I also hope that these are fair. It would be as wrong for these MPs to be convicted without sufficient proof as it would be for them to have walked away scot-free if they have committed fraud via the expenses system. I fear how it may be presented in the media if no convictions occur though.

 

Posted by stepurhan on Sun, 13/06/2010 - 21:43

 

I don't think there's much chance of an acquittal IF it gets to trial.  My guess is that having tried one pretty desparate way to avoid trial, we will now be treated to the sight of a series of doctors telling the courts that they are not fit to stand trial due to "stress".  Then of course the media coverage and the fact they are in the public eye will generate applications n the basis that they "cant obtain a far trial".  After that no doubt the court will be told that they were "told to do it" and that it was "within the rules".  

Just occasionally I wonder if the old fashioned methods involving an angry mob, a length of rope, and the nearest lamp post, might have some merit, if only to save a fortune in bringing these cases to court.   

Rough justice

Anonymous | | Permalink

Is there, perhaps, some inconsistency in C-D's post? He is concerned that that those accused over their expenses will claim they cannot receive a fair trial but he then proceeds to extol the virtues of the lynch mob. If someone whose previous posts imply legal connections, or even a legal background, is so biased against them, they might have reason to be concerned about the fairness of any trial.

cymraeg_draig's picture

Anonymous

cymraeg_draig | | Permalink

Is there, perhaps, some inconsistency in C-D's post? He is concerned that that those accused over their expenses will claim they cannot receive a fair trial but he then proceeds to extol the virtues of the lynch mob. If someone whose previous posts imply legal connections, or even a legal background, is so biased against them, they might have reason to be concerned about the fairness of any trial.

 

Posted by Anonymous on Mon, 14/06/2010 - 01:13

 

It seems someone is so intent upon making derogatory comments that they are prepared to take a "throw away" comment - which everone else can clearly see is exactly that - and twist it in their desparation to score some imaginary point.

What a very interesting time your post was made at - several offensive posts which have recently been reported to AWeb have also been made at a time when no one else is posting. It is highly unlikely that an accountant would be posting at that time of night - but quite likely that an obsessive internet troll would be.   Thank you for providing further evidence.

Mud glorious mud

Anonymous | | Permalink

thanks David

things are becoming clearer although I am still confused how Mr Bowles could have his assets taken away prior to his conviction so that he could not fund a defence.

was this forfiture not confiscation ?

MP 's or otherwise still deserve a defence and their lawyers are doing their best and raising some very interesting questions of law as a by product. e.g bill of rights versus POCA.

Surely it is their duty to explore these matters, technical points and failure in proceedure are often used to prevent conviction of the seemingly guilty.

davidwinch's picture

Funding a defence

davidwinch | | Permalink

That's a slightly different issue (again!).

A person who is under investigation for a suspected offence from which they have benefited (so again, not the pub brawl but theft, fraud, drug trafficking, etc., etc.) may have their assets 'frozen' (not the correct term - I should say their assets may be subject to a restraint order - see ss40 & 41 PoCA 2002 - but you get the idea.)

Where a person's assets are frozen they will (normally) nevertheless be allowed to draw a fixed monthly amount for living expenses and other 'drawings' may be permitted as appropriate.  However the legislation specifically states that no withdrawals are to be permitted "for any legal expenses which relate to an offence" which is an offence which formed the basis of the making of the restraint order (s41(4) & (5)).

So, in other words, you cannot fund your defence costs if your assets are subject to restraint.  But of course you can apply for legal aid to fund your defence costs, just like anyone else.

A restraint order may be obtained at an early stage - even before you have been arrested or charged with anything!

The purpose of a restraint order is to avoid you dissipating or hiding your assets when you realise that 'they are on to you'.  But the impact can be harsh.

It was felt in the past that 'the bad guys' spent excessively on 'top class' legal teams because, in effect, it cost them nothing if they knew that they would lose the money in any case if convicted.  The law now prevents that potential for abuse.  That's the rationale for it (I am not saying I agree with it).

David

The innocent

tonyarm | | Permalink

A commentator says "but that puts the burden of proof on the innocent to prove themselves so" - No doubt I'm at odds with the libertarian section of society, but I've never had a problem with this notion. I don't regard it as a burden to be able to show where I get my money from or where I spent last night or who I am or even why I am at where I am at - if asked by the police or anyone else legitamatly engaged in trying to make my life safer.   But that's just me I suppose - I've got nothing to hide and I don't mind a little inconvenience as one of the obligations of the "rights and obligations" balance of being part of this society that I am happy (and lucky) to be part of. 

davidwinch's picture

A balance to be struck

davidwinch | | Permalink

A system of justice should ideally ensure the innocent are acquitted and the guilty are convicted.  It should also minimise unnecessary disruption, inconvenience and embarrassment to innocent people who may (for whatever reason) come under suspicion.

So I don't see a problem with a roadside camera reading my numberplate as I drive past it, or clocking my speed.  But if I found myself arrested and detained in a police station, or having my assets frozen, or - worse - standing trial in court (with the attendant publicity), or - worse still - convicted of some crime, whilst an innocent man I would be a little peeved about that.

Can I guarantee that won't happen to me, or to you?  Unfortunately I cannot.

David

cymraeg_draig's picture

Alibi

cymraeg_draig | | Permalink

... I've never had a problem with this notion. I don't regard it as a burden to be able to show where I get my money from or where I spent last night or who I am or even why I am at where I am at -  Posted by tonyarm on Mon, 14/06/2010 - 10:49

 

I think you might find the reality rather different to the theory.  If arrested the odds are that you will be asked, not where you were last night, but more likely where you were 3 weeks last Wednesday.  Now I've seen this many times.  A typical interview would be something like this -

Q - Where were you 3 weeks last Wednesday

A - At home watching TV

Q - Any witnesses

A - My wife

Q - She doesnt count she's not independant. What were you watching?

A. - Football

Q - What game.

A - The world cup final

Q - Who won

A - England beat Germany 17-0  :)

Q - Well you could have recorded it and watched it later so that proves nothing. I'm charging you.

The chances of you actually being able to prove beyond doubt where you were are negligible.  Unless you can actually prove that at the time in question you were with an independant witness you really have very little chance.

 

 

Alibi

tonyarm | | Permalink

I'm not talking about innocent until proven guilty or the burden of proof required. I'm taliking about my willingness to respond to questions about how I got my wealth, why I am in a particular place at a particular time, who I am, what I have in my pockets/car/bag, etc. when asked by somebody who is authorised by the "State" to do so.  I am happy to respond to them because I think the loss of that personal freedom is a sacrifice I am willing to make to make it easier to deal with people who would wish to make society a more dangerous place for those of us who wish no harm to others.  If it makes it easier for the police to catch young men walking the street with knives in their pockets or drug dealers with large amounts of "unexplained" cash at their home or tax dodgers syphoning undeclaed cash income - then I'm happy with that.

cymraeg_draig's picture

tonyarm

cymraeg_draig | | Permalink

Unfortunately it doesnt end there.

Experience shows that the answers you give, no matter how logical, or how much corroboration you have, make very little difference.  The one biggest fault with our police forces is that once they have a suspect, they don't set out to investigate "if" he committed the offence, they instead set out to find anything at all that might serve to buold a case against their suspect.  

They are not interested in whether they have the right man, merely in convicting the suspect regardless of his guilt.  

That is why Britain has more innocent men imprisoned that any other western country except the USA. Just look at our appeal courts to see how many convictions are overturned - and most of those are not on "technicalities".  Most are because of proof that the original police investigation was deeply flawed or downright biased. 

As a simple example take the case a couple of years ago where 2 white men were convicted & jailed despite the ONLY eye witness stating that the offenders were 2 black men. The police "conveniently" failed to disclose this evidence to the court or to the defence.  

"I'm innocent so I have nothing to fear" could prove to be the daftest thing anyone ever said.   

davidwinch's picture

A golden rule

davidwinch | | Permalink

If you are ever interviewed by a person in authority (police officer, tax inspector, someone from the DWP, someone from your employer, etc) and they say the magic words of the caution, "You do not have to say anything but . . . " then your first question in response is "Am I allowed to have a solicitor present?".

If the answer is "Yes" then get one and say nothing more until you have spoken to him. 

If the answer is "No" then you say, "I do not wish to say anything until I have had the opportunity to obtain legal advice".  You can confirm your name, address and date of birth, you can give a sample of breath (e.g. for suspected drink drive offences - don't refuse to give a sample of breath!!), your fingerprints and your DNA and have your mugshot taken - but the only words you speak from then on are "No comment", and you say that over and over and over again (even to the most innocuous question).

If I had a pound for every time someone has said to me "I didn't think I needed a lawyer" I would be a wealthy man!

In practice these days solicitors often give advice over the phone to persons detained at the police station.  It's cheaper and legal aid has been cut, but it is better (if you can) to get the legal adviser to actually turn out and see the arresting officer and get disclosure from him and then speak (privately) to you, before you are interviewed.

David

cymraeg_draig's picture

Spot on David

cymraeg_draig | | Permalink

"If in doubt, say nowt"

Advice I heard given 40 years ago, and still good advice today. The point is that plod is interviewing you for his benefit, not yours. They are trying to build a case against you, not trying to hear your defence. 

As when dealing with the tax office I alway try to get the details of any accusation in writing.  That way they are stuck with it, and cant change the allegation to fit the facts - something HMRC and the police are not adverse to doing.

Interestingly once a police officer believes he has sufficient evidence to sustain a charge, he is obliged to end the interview and charge you.  So, the fact he is interviewing you implies he, at that stage, does not have enugh to sustain a charge.  If you refuse to comment, the question can then be asked - you didnt have sufficient to sustain a charge, my client has declined to answer any questions, so exactly what "extra evidence" have you now got to justify you charging my client now?

I've seen a few police officers struggle when faced with that, and of course, its a question you can legitimately put to him in court too. 

Rough justice 2

Anonymous | | Permalink

 

Is there, perhaps, some inconsistency in C-D's post? He is concerned that that those accused over their expenses will claim they cannot receive a fair trial but he then proceeds to extol the virtues of the lynch mob. If someone whose previous posts imply legal connections, or even a legal background, appears so biased against them, they might have reason to be concerned about the fairness of any trial.Posted by Anonymous on Mon, 14/06/2010 - 01:13--------------It seems someone is so intent upon making derogatory comments that they are prepared to take a "throw away" comment - which everone else can clearly see is exactly that - and twist it in their desparation to score some imaginary point.What a very interesting time your post was made at - several offensive posts which have recently been reported to AWeb have also been made at a time when no one else is posting. It is highly unlikely that an accountant would be posting at that time of night - but quite likely that an obsessive internet troll would be.   Thank you for providing further evidence.Posted by cymraeg_draig on Mon, 14/06/2010 - 09:46------------------------------------In fact, I am a scientist that likes to remain informed of developments in other disciplines. I do not think you will find an “obsessive internet troll” on this small private discussion group. Rather, I am a fan of David Winch’s informative and elegantly written posts.I am not keen on making anonymous postings but, from the tone of some of the unusually large number of postings by the anonymous C-D, I realised that anyone who questioned his comments risked an unsympathetic response. However, I did not anticipate that he would resort to ill-informed personal abuse. I would not want that linked to my name by internet search engines.I apologise for the lateness of my postings but scientists do not always keep office hours.

Guilty until proven innocent

alistair_king | | Permalink

So if your assets are frozen you have to rely on legal aid.

Except it is now means tested and suffers restrictions plus contributions to cost out of free income.

I remember the case I was reading about and which was the reason I joined this group - the guy convicted of VAT fraud because his assets were frozen and legal aid refused to pay for an accounting review of the evidence (which he didn't have direct access to because his company was now in administration . Finally a firm of accountants stepped in, did the accounting work pro bono which showed that far from committing VAT fraud he was actually owed money by the tax man. But he was sentenced because their report was delivered to the judge AFTER the jury returned a verdict but before the judge sentenced. The judge announced deep unease at the verdict and still jailed the poor guy.

So being forced to rely on legal aid doesn't sound too attractive.

As to lynch law. Part of my childhood was spent South of the equator. I won't say which continent or country. There was a rape trial in my town and 4 men were convicted of gang raping some women. They were given an unexpectedly lenient sentence (there may have been some ethnic bias! Judge + men from one ethnic group. Women from another). When the police van drove them away after sentencing it "parked" near the court while the driver and his collegues took a quick "toilet break". The mob (incidentally also from the men's ethnic group) then conveniently appeared, pulled the rapists from the van and hung them from the lamp-posts.

cymraeg_draig's picture

Anonymous

cymraeg_draig | | Permalink

 I do not think you will find an “obsessive internet troll” on this small private discussion group.  Posted by Anonymous on Tue, 15/06/2010 - 02:01

 

Hardly small, certainly not "private" or how did you as a non-accountant log on ?

The rest of your posting does not warrant my time responding.

davidwinch's picture

Latest development on MPs expenses prosecution

davidwinch | | Permalink

I understand that the three ex-Labour MPs are now to be allowed to take their case (to the effect that any misconduct in connection with their expenses claims should be dealt with by Parliamentary procedures rather than a criminal trial in the Crown Court) to the Supreme Court (what we used to call the House of Lords until it was re-named and moved into a different building).

Reportedly a hearing in front of a panel of nine judges is scheduled for October.

David

I hope

geoffwolf | | Permalink

they are made to pay the costs out of their personal pockets

davidwinch's picture

Supreme Court hearing begins

davidwinch | | Permalink

The Supreme Court hearing in the MPs expenses case is due to start today (18 October).

David

N.B. Any comment on the case needs to be drafted with care to avoid contempt of court as the question of the MPs' guilt or innocence is due to come before a jury in due course.  The issue the Supreme Court is deciding is simply whether the Crown Court or Parliament itself is the appropriate venue for the proceedings against the MPs.

davidwinch's picture

Supreme Court ruling

davidwinch | | Permalink

The Supreme Court has ruled that the matter should be tried in the criminal courts (and so has found against the former MPs on the parliamentary privilege issue).

The reasoning behind that conclusion is to be published later.

David

davidwinch's picture

David Chaytor pleads guilty

davidwinch | | Permalink

Ex-MP David Chaytor has today pleaded guilty to expenses fiddles and will not now face jury trial (which was due to start next week).

He will be sentenced early in the New Year.

David

davidwinch's picture

David Chaytor sentenced to 18 months

davidwinch | | Permalink

Former MP David Chaytor has today been sentenced to 18 months imprisonment.

David

fiddling your expenses

oldersimon | | Permalink

Eighteen months in stir, eh ?

I know that MPs have a special responsibility....but which of us have never done it ? 

weaversmiths's picture

Fiddling your Expenses

weaversmiths | | Permalink

<

<..I know that MPs have a special responsibility....but which of us have never done it ? ..>

 

I haven't, for one.  I'll admit that I have had the occasional pen in my bag or pocket.  Being a COT I could have fiddled my expenses as there were opportunities - could not be bothered.  Over my varied career, which now has reached getting on for  55 years,  I have been in the position to "fiddle" quite large sums but have never been tempted.  In earlier times I always said "work out how much I will earn before I retire, taking inflation into account and treble it and you have the amount I would be 'bent' for".  In other words, no deal.  It really does not occur to me - perhaps I am odd?... AND, of course, I do not expect others to fiddle either, especially those I should be able to expect to look up to and who already get copious amounts of my money paid for by taxation.  I would have given the arrogant so and so 18 years(:-).  He will only go to Ford with the rest of the lesser thieves and frauds - pity he wont be able to get a game of pool or pass his time in the gymnasium, bless.

 

TheAncientOne

Early release

JeremyNewman | | Permalink

With the usual discounts for good behaviour, non-violent crime and so on, he's likely to serve only a quarter of his sentence, so could easily be out by the end of May this year. 18 months does not mean 18 months...

davidwinch's picture

Early release

davidwinch | | Permalink

My understanding is that Mr Chaytor will be due for unconditional parole (i.e. he will be out of prison and not have an electronic tag) when he has served half his sentence (i.e. 9 months from now).

However during that first 9 months he will be eligible to serve two months outside the prison (i.e. at his home) with a tag and subject to a night-time curfew.

So he will only spend 7 months actually in prison.  During that 7 months he may be permitted to go out of prison during the daytime for various purposes (e.g. to carry out approved work) but must return each night unless permitted out overnight (e.g. for a weekend).

My understanding is that he is unlikely to receive any such permissions until he has served at least one-quarter of his sentence (i.e. 4½ months).

The likelihood is that he will be assessed after a few days as low risk and moved to an 'open' prison fairly soon.

All this assumes of course that he is a model prisoner.

So (i) a few days in Wandsworth, (ii) transfer to an open prison where he stays 24/7 until nearly the end of May, (iii) some day trips out and weekends away from then till early August, (iv) at home with a tag and under a curfew then until early October, (v) from then on a requirement to regularly 'check in' with his probation officer until early July 2012.

Should he commit a further imprisonable offence before the 18 months expires in early July 2012 he may then be immediately returned to prison.

The first few days are likely to be the worst for him to deal with.  Let's face it would any of us want to be checked to see if we had secreted a mobile phone or a stash of drugs (either of which is highly prized in prison) about our person where, er, 'the sun don't shine'?  There is a certain loss of dignity in the prison induction programme!

The objective of the early release regime is to gradually re-introduce convicted prisoners into the community under supervision in the hope that they will 'go straight'.  It doesn't always work out that way though!

If he has his wits about him Mr Chaytor will be keeping a diary so he can write his memoirs up when he gets out.  Although jail diaries are getting to be a crowded market  . . .

David

nogammonsinanundoubledgame's picture

Do you know ...

nogammonsinanun... | | Permalink

... if it has been established that he was living a "criminal lifestyle" and if so, what would be the magnitude of the confiscation order?

With kind regards

Clint Westwood

davidwinch's picture

Confiscation (not)

davidwinch | | Permalink

I don't know whether the judge made any ancillary orders (such as confiscation, legal costs, etc) but I have not seen any mention of confiscation.

In Crown Court proceedings confiscation may result either from a request by the prosecution or from the judge acting on his own initiative - s6(3) PoCA 2002.

However this was a case in which, as far as one can tell, the theft / fraud was straightforward and the convicted defendant has already repaid everything which he obtained from it.  In these circumstances the existing CPS guidance is that "In such cases it may be inappropriate for the prosecutor to instigate confiscation proceeding but this will require an independent judgment on the facts of each case".

My guess therefore is that there was no confiscation in this case.

Had confiscation proceedings been initiated then I believe Mr Chaytor would have been held to have had a 'criminal lifestyle' (s75(2)(c) & (4)) because he had been convicted of an offence committed over a period of at least 6 months from which he had obtained a benefit of at least £5,000 (in relation to the false claims for rent of a flat in London).

In that event the statutory assumptions of s10 would apply and (amongst other things) all assets held by Mr Chaytor at any time after the date of his conviction would be assumed to have been obtained from (unspecified) criminal conduct.  He would then be obliged to show that assumption to be incorrect or unjust (the burden of proof being on the convicted defendant) or face a confiscation order in the amount of their value.

David

davidwinch's picture

Guilty plea by Eric Illsley MP

davidwinch | | Permalink

Eric Illsley MP (the MP for Barnsley Central, who is currently acting as an independent but was formerly a Labour MP) has today pleaded guilty to 3 charges in relation to inflated expenses claims.

He will return to court for sentencing in February.

He is the only serving MP who has been charged in relation to expenses claims.

David

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Group: Money laundering and crime
A group for discussing issues relating to suspected money laundering and other crime