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News Archive 2010

23 December 2010: Legal knowledge of adjournment arrangements leads to MTM client being found not guilty

An MTM client in a serious road traffic case has been found not guilty after MTM successfully invoked the little-known terms of Section 152 of the Criminal Procedure (Scotland) Act 1995.

Charges against the client were wide-ranging and included careless driving, failing to stop at the scene of an accident and failing to report an accident to the police. The prosecutor moved to adjourn the trial, but MTM opposed the motion and the presiding Magistrate agreed that it was not appropriate to adjourn the case any further, given the importance of the matter to the accused. He was formally found not guilty of the charges after we brought to the attention of the court the little-known terms of Section 152 of the Criminal Procedure (Scotland) Act 1995 which states that in circumstances where a Crown motion to adjourn is refused, and if the Crown is unable to proceed with the trial, then the Court must desert the trial.

Again, the MTM case was successful on the basis of expert knowledge of the very technical rules of evidence and procedure applying to criminal law.

16 December 2010: MTM successfully argues that prosecution failure to produce supporting evidence rules out right to a fair trial

The prosecutor in a road traffic case has been persuaded to discontinue the prosecution half way through the trial after MTM raised a successful objection to the prosecutor’s failure to produce evidence for the defence to examine, in order to give the accused a fair trial. The case involved a charge under Section 172 of the Road Traffic Act 1988, where the registered keeper of a vehicle had allegedly failed to identify the driver of his vehicle which had allegedly been involved in a road traffic accident. Police officers had attended the registered keeper’s house asking who the driver of his motor vehicle was on a certain date many weeks previously. It was successfully argued in Court that it was very difficult for him to know who had been the driver of his vehicle.

MTM’s approach in this case was to invoke the ‘best evidence’ rule. We objected to the trial proceeding in the absence of the production of the evidence because it meant the defence did not have an opportunity to examine it, as the police witnesses had done for the prosecution. The presiding Magistrate agreed that this was unfair to the defence and the prosecutor was persuaded therefore to discontinue the trial and our client was acquitted of the charge.

7 December 2010: Clients cleared of assault charges in two domestic abuse cases

Two MTM clients in domestic abuse cases have been separately cleared of assault and acquitted on the same day. Another highly successful day for the firm, it was also a huge relief to both clients whose lives might have taken a very different and unwelcome course had it not been for effective legal representation.

30 November 2010: MTM client avoids 12 penalty points and disqualification – and keeps his job

An MTM client accused of road traffic offences, relating to careless driving, failing to stop at the scene of a motor accident and failing to report a motor accident, has been acquitted after trial. If he had been convicted he would have had over 12 penalty points and would have been disqualified for a period of six months. Such an outcome would have led to the loss of his job, with potentially disastrous consequences for his family in terms of personal distress and economic hardship. Winning such a case for a client is always satisfying, not least because of what it means to their family.

23 November 2010: MTM successfully appeals custodial sentence in theft case

An MTM client has had a 60-day prison sentence quashed and substituted with a one-year probation period in respect of a theft charge. MTM’s appeal was based on the fact that the client had stayed out of trouble for the best part of nine years or so preceding the conviction and that the offence was therefore outwith the pattern of his recent record of behaviour.

15 November 2010: MTM persuades High Court to take an exceptional view of case

An MTM client who pled guilty in a High Court case to a charge of supplying class A drugs with a street value in the range of £40,000 - £65,000 has been sentenced to only 300 hours of community service. The leniency of the Court was the direct result of MTM having persuaded the judge to take an exceptional view of the case and to impose a community service order. It is a remarkable result for the firm and the client, and an opportunity for the latter to reassess his life.

11 November 2010: Acquittal in breach of bail condition case

An MTM client has been acquitted at a Sheriff Court in Scotland of breaching a special condition of bail. The special condition was not to approach or contact the alleged victim in a case involving a charge of assault. The client was prosecuted at Sheriff Court level separately from the principal charge and acquitted of that charge after trial.

9 November 2010: Trial for assault results in acquittal at Falkirk Sheriff Court

At Falkirk Sheriff Court an accused person and MTM client has been acquitted of a charge of assault to severe injury. The acquittal followed a trial where he was represented by the MTM defence team.

4 November 2010: MTM client in charity fraud case receives fine instead of custodial sentence

An MTM client convicted of a fraud from a charity has been given a fine rather than a custodial sentence. In a serious case of fraud a custodial sentence is always a real possibility, and a fine is highly unusual. The court was also persuaded not to call for reports, which would have led to further intrusion in the life of the client. Perhaps the result is best summed up by the client who commented “how good it felt getting up the next day, knowing it was all over and done with and that I still had my future, and, more importantly, my freedom to look forward to”.

28 October 2010: Successful appeal in DSS fraud case

An appeal by MTM has resulted in a client’s sentence of 8 months imprisonment being commuted to 200 hours community service. The appeal was based on expert knowledge of recent sentencing guidelines issued by the High Court in respect of DSS cases. In addition, the client had originally faced an allegation that they had defrauded the DSS of a sum in excess of £28,000; the client pled guilty to a sum of around £10,500 and we were able to secure a sentence of community service. The client was also delighted because the prospect of facing Christmas in prison and away from family had also been removed.

Read the judge's notes of reasons.

24 October 2010: The Cadder Case - UK Supreme Court ruling strikes at heart of the Scottish criminal justice system

A ruling by the new Supreme Court in London (Cadder v HMA) means that thousands of criminal prosecutions currently going through Scottish courts are likely to collapse. The ruling by The Supreme Court states that confessions obtained by the police cannot be used as evidence at a trial, unless the suspect was allowed legal advice from a solicitor beforehand. The ruling will now almost certainly lead to the collapse of thousands of cases that are already underway in Scottish courts, according to leading Solicitor Advocate Neil Hay of MTM Defence lawyers, Falkirk. Previous convictions are unaffected by the ruling and are consequently not open to challenge in the courts.

The decision by The Supreme Court in London nevertheless essentially overrules a previous ruling by the Scottish Appeal Court (McLean v HMA). However, The Supreme Court’s ruling upholds a previous ruling by the Grand Chamber of the European Court of Human Rights (ECHR) which decided that the human rights of an alleged member of the banned Kurdistan People’s Party (KPP) had been violated because the accused person had not had a lawyer present when questioned by the police.

In Scotland, an accused person has no legal right to have a lawyer present to advise them when questioned by the police; this is unlike the position in England, where an accused person has a legal right to have a lawyer present in such circumstances. The ruling by the Supreme Court in London upholds the EHCR’s ruling in the Turkish case and means that defence lawyers in Scotland can now challenge all evidence obtained by the police from interviews with accused persons where they were refused legal advice beforehand. Neil Hay of MTM Defence Lawyers estimates that thousands of cases going through the Scottish courts, including many cases such as rape and domestic assault, where there are often no other eyewitnesses present, would fall into that category. The content of such interviews, which may include confessions, often forms the bedrock of the prosecution case together with eyewitness statements, where these are available.

As Neil Hay of MTM Defence Lawyers Falkirk says: “The ruling by the Supreme Court has shaken the foundations of Scotland’s criminal justice system. Many prosecutions are now set to fail. It also highlights the extent to which the Scottish legal system is exposed to challenge compared with the system that pertains to England, where there is, in almost all cases, a presumed right to have a lawyer present from the outset.”

Mr Hay continues: "MTM was one of the first legal practices to realise the potential significance of the Salduz case and has been taking steps, in appropriate cases to challenge the use of police interview evidence in criminal trials. The right to have proper legal advice before a police interview is an essential component of a fair legal system: there are just too many ways in which a person might unknowingly incriminate themselves. It should be remembered that this can happen to people who might otherwise have been proved innocent.”