Category: Law

Law articles mainly focussed on law and legal matters in England and Wales.

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Criminal Justice Law Legal Analysis Legal Professionals

What is a Defendant’s Costs Order ?

Defendants Costs Order

A Defendant’s Costs Order (DCO) under Section 16 of the Prosecution of Offences Act 1985, is a court order that enables a defendant who is found not guilty (or whose case is dismissed) to reclaim reasonable expenses they incurred while defending themselves in court.

These costs can include legal fees, travel expenses or other out-of-pocket costs directly related to the case.

Key Provisions of Section 16 Prosecution of Offences Act 1985

Section 16 of the Act provides the legal framework for courts to award costs to acquitted defendants. The main points are:

  1. Eligibility:
    • The defendant must be acquitted of the charges or have the case against them discontinued/dismissed.
    • The order typically applies to defendants who privately funded their defense. If legal aid was used, a DCO is generally not applicable, as the state already covered legal costs.
  2. Types of Costs Recoverable:
    • Legal costs: Fees paid to solicitors or barristers for representation.
    • Out-of-pocket expenses: Costs like travel to court, accommodation (if necessary), or loss of earnings due to court attendance.
    • Costs must be deemed reasonable and directly related to the defense.
  3. Court’s Discretion:
    • The court has the authority to decide whether to grant a DCO and how much to award.
    • Factors considered include:
      • Whether the prosecution acted unreasonably in bringing or conducting the case (e.g., insufficient evidence or procedural errors).
      • The financial impact on the defendant.
      • The reasonableness of the costs claimed.
    • If the prosecution’s case was reasonable, even if it failed, the court may refuse to award costs.
  4. Funding Source:
    • Costs awarded under a DCO are typically paid from central funds (government funds), not by the prosecution directly unless specific misconduct by the prosecution is identified.

Criminal Practice Directions

The Criminal Practice Directions 2023 (CPD) provide guidance on the application of the Criminal Procedure Rules in England and Wales, including how costs, such as a Defendant’s Costs Order (DCO) under Section 16 of the Prosecution of Offences Act 1985, are handled in criminal cases.

Specifically, Practice Direction (Costs in Criminal Proceedings) 2015 sections 2.1 (Magistrates Court), 2.2 (Crown Court), 2.3 (High Court) and 2.4 (Court of Appeal – Criminal Division) addresses the principles for awarding costs from central funds in criminal proceedings.

Application Process

  • When to Apply: The application for a DCO is usually made by the defendant or their legal representative at the end of the trial, immediately after the acquittal.
  • Evidence Required: The defendant must provide evidence of costs, such as invoices for legal fees, travel receipts, or proof of lost earnings.
  • Court Decision: The magistrates will review the application and decide whether to grant the order and what amount is reasonable. The awarded amount may not cover all expenses if some are deemed excessive.

Limitations

  • Not Automatic: A DCO is not guaranteed, even if acquitted. The court may refuse if it believes the prosecution acted appropriately or if costs are not sufficiently justified.
  • Reasonable Costs Only: The court will only cover costs considered proportionate and necessary. Extravagant legal fees or unrelated expenses are unlikely to be reimbursed.
  • No Punitive Element: The DCO is meant to compensate, not punish the prosecution, so awards are limited to actual losses.

Practical Considerations

  • Privately Funded Defendants: Those who paid for their own defense are the primary beneficiaries. If you used legal aid, you typically cannot claim additional costs under a DCO.
  • Magistrates’ Court Context: In magistrates’ courts, where cases are often less complex than in Crown Courts, the costs claimed are usually lower, but the principles of Section 16 still apply.
  • Appeals: If a DCO is refused or the amount awarded is insufficient, there may be limited grounds to appeal, typically requiring evidence of a legal error by the court.

Example Scenario

If you were charged with a minor offense (e.g., a traffic violation) in a magistrates’ court, hired a private solicitor, and were acquitted, you could apply for a DCO to recover your solicitor’s fees and travel costs to court.

If the court finds that the prosecution’s case was weak or improperly brought, they may award costs from central funds, but only up to an amount they deem reasonable.

Additional Notes

  • Time Limits: Applications for a DCO should be made promptly, typically at the hearing where the acquittal is granted, though courts may allow later applications in exceptional cases.
  • Legal Advice: A solicitor can help calculate and justify costs to maximize the chances of a successful DCO application.
  • Other Jurisdictions: This explanation applies to England and Wales. Rules in Scotland, Northern Ireland, or other jurisdictions may differ.

Check out our related articles on Public Spaces Protection Order (PSPO), Norwich Pharmacal Orders, Wasted Costs Order, Rule of Law, Open Justice, Is the Law Black and White ?, Abuse of Process, What Does Lady Justice Symbolise ?, McKenzie Friend, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?,Law Society, Law Commission, McKenzie Friend Right of Audience, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

“Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial….Where there is no publicity there is no justice”

Jeremy Bentham – Mr Justice Cobb: ‘Justice must be seen to be done’

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You should always seek formal legal advice from a qualified and reputable lawyer (solicitor or barrister).

There are a number of links to Free and Paid For Legal Resources and Legal Organisations on the Free Legal Advice , Legal Aid and Pro Bono pages.

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Law Legal Analysis

What are the Branches of Law ?

Branches of Law

The United Kingdom’s legal system is a rich and intricate framework that governs society through a variety of legal branches. These branches, each with distinct purposes and applications, reflect the UK’s unique blend of common law traditions, statutory provisions, and historical practices.

Understanding these branches is essential for grasping how justice is administered in the UK, from resolving private disputes to regulating state power.

Constitutional Law

Constitutional law forms the foundation of the UK’s governance, defining the structure and powers of the state, its institutions, and their relationship with citizens.

Unlike countries with a single written constitution, the UK’s constitution is uncodified, comprising statutes, conventions, judicial precedents, and historical documents such as the Magna Carta 1215 and the Bill of Rights 1689.

Key legislation, like the Human Rights Act 1998, incorporates protections from the European Convention on Human Rights into domestic law. Constitutional law governs the roles of Parliament, the monarchy, the government, and the judiciary, ensuring a balance of power.

It also addresses devolution, defining the powers of the Scottish Parliament, Welsh Senedd, and Northern Ireland Assembly. Landmark cases, such as R (Miller) v Secretary of State for Exiting the European Union (2017), highlight its role in resolving disputes over governmental authority, particularly during Brexit.

Administrative Law

Closely linked to constitutional law, administrative law regulates the actions of public bodies, ensuring they operate within legal boundaries. It provides mechanisms, such as judicial review, to challenge decisions by government departments, local authorities, or public institutions if they are unlawful, irrational, or procedurally unfair.

For example, a citizen might seek judicial review if a local council’s planning decision violates statutory requirements. Key principles, like natural justice and fairness, underpin this branch, with cases such as Ridge v Baldwin (1964) shaping its development. Administrative law is vital for maintaining accountability, especially in an era of expanding government functions.

Criminal Law

Criminal law addresses offences against society, such as theft, assault, murder, or fraud. Its primary aim is to maintain public order by defining prohibited conduct and prescribing punishments, ranging from fines to imprisonment.

Governed by statutes like the Theft Act 1968, the Offences Against the Person Act 1861, and the Criminal Justice Act 2003, criminal law operates under a high burden of proof, “beyond reasonable doubt.”

The Crown Prosecution Service (CPS) decides whether to prosecute based on evidence and public interest. Criminal law also evolves through case law, with precedents clarifying issues like intent or self-defence. Its societal impact is profound, balancing punishment, deterrence, and rehabilitation.

Civil Law

Civil law governs disputes between private individuals or entities, such as businesses, organisations, or citizens. Unlike criminal law, its focus is on resolving disputes rather than punishing wrongdoing, often through remedies like compensation or injunctions.

Civil law encompasses areas like contract disputes, property issues, and personal injury claims. The standard of proof is lower than in criminal cases, “on the balance of probabilities.”

Statutes like the Consumer Rights Act 2015 and the Civil Procedure Rules 1998 guide civil litigation, ensuring fair and efficient resolution. Civil law’s breadth makes it a cornerstone of everyday legal interactions.

Family Law

Family law regulates personal relationships, including marriage, divorce, child custody, adoption, and domestic violence. It seeks to balance legal, emotional, and social considerations, with the welfare of children being paramount, as outlined in the Children Act 1989.

The Matrimonial Causes Act 1973 governs divorce and financial settlements, while recent reforms, like the Divorce, Dissolution and Separation Act 2020, introduced “no-fault” divorce to reduce conflict. Family courts handle sensitive cases, often involving mediation to minimise adversarial proceedings, reflecting the branch’s focus on practical resolutions.

Tort Law

Tort law, a subset of civil law, addresses civil wrongs where one party’s actions cause harm to another, such as negligence, defamation, or nuisance.

Its goal is to compensate the injured party, typically through damages. Landmark cases like Donoghue v Stevenson (1932) established the modern principle of negligence, introducing the “duty of care” concept. Statutes like the Defamation Act 2013 also shape this branch.

Tort law is dynamic, adapting to societal changes, such as addressing online defamation or environmental harm.

Contract Law

Contract law governs legally binding agreements between parties, ensuring obligations are fulfilled.

It covers issues like breaches of contract, misrepresentation, or unfair terms, with principles derived from statutes like the Sale of Goods Act 1979 and common law. Cases such as Carlill v Carbolic Smoke Ball Co (1893) illustrate foundational principles like offer and acceptance.

Contract law underpins commercial and personal transactions, fostering economic stability.

Property Law

Property law regulates the ownership, use, and transfer of assets, divided into real property (land and buildings) and personal property (e.g., goods or intellectual property).

Statutes like the Land Registration Act 2002 and the Law of Property Act 1925 govern land ownership, leases, and mortgages. Property law also intersects with inheritance and trusts, ensuring clarity in asset distribution.

Its complexity reflects the economic and social importance of property in the UK.

Equity and Trusts

Equity and trusts law addresses fairness in legal remedies, originating from historical courts of equity.

It includes trusts, where one party holds property for another’s benefit, governed by statutes like the Trustee Act 2000. Equity provides flexible remedies, such as injunctions or specific performance, complementing common law.

Its principles ensure justice in cases where strict legal rules may produce unfair outcomes.

European and International Law

Despite Brexit, international law and retained EU law significantly influence the UK. The European Union (Withdrawal) Act 2018 incorporates certain EU regulations into domestic law, particularly in trade, employment, and environmental standards.

International law encompasses treaties, customary law, and obligations under organisations like the United Nations. Examples include:

  • Trade Law: The UK adheres to World Trade Organization (WTO) rules, governing tariffs and trade disputes. Post-Brexit trade agreements, such as the UK-EU Trade and Cooperation Agreement 2020, regulate economic relations with the EU.
  • Human Rights Law: The UK is party to the European Convention on Human Rights (ECHR), enforced through the Human Rights Act 1998. Cases like Hirst v UK (2005) at the European Court of Human Rights challenged UK prisoner voting laws.
  • Environmental Law: The Paris Agreement 2015 commits the UK to reducing carbon emissions, influencing domestic policies like the Environment Act 2021. The Aarhus Convention ensures public access to environmental justice.
  • Maritime Law: The United Nations Convention on the Law of the Sea (UNCLOS) governs UK maritime boundaries. The 2016 Philippines v China arbitration, though not directly involving the UK, illustrates UNCLOS’s role in resolving territorial disputes, relevant to UK interests in global shipping lanes.
  • International Humanitarian Law: The Geneva Conventions regulate UK military conduct, ensuring protections for civilians and prisoners during conflicts, such as in Iraq or Afghanistan.
  • Sanctions and International Criminal Law: The UK uses UN and domestic sanctions to target regimes or individuals, as seen in measures against Russia post-2022 Ukraine invasion. The International Criminal Court (ICC), to which the UK is a signatory, prosecutes war crimes though enforcement challenges persist.

Check out our related articles on Rule of Law, Open Justice, What is Law, Is the Law Black and White ?, Abuse of Process, What Does Lady Justice Symbolise ?, McKenzie Friend, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?,Law Society, Law Commission, McKenzie Friend Right of Audience, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

“Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial….Where there is no publicity there is no justice”

Jeremy Bentham – Mr Justice Cobb: ‘Justice must be seen to be done’

Latest Articles ↓

Most Popular ↓

You should always seek formal legal advice from a qualified and reputable lawyer (solicitor or barrister).

There are a number of links to Free and Paid For Legal Resources and Legal Organisations on the Free Legal Advice , Legal Aid and Pro Bono pages.

Categories
Criminal Justice Law Legal Analysis

What is the Youth Justice Board for England and Wales ?

Youth Justice Board for England and Wales

The Youth Justice Board (YJB) for England and Wales is dedicated to overseeing and improving youth justice services.

We are an organisation of around 100 people and our headquarters is in London.

Our vision is for a youth justice system that sees children as children, treats them fairly and helps them to build on their strengths so they can make a constructive contribution to society. This will prevent offending and create safer communities with fewer victims.

Youth Justice Board – About Us

Established under the Crime and Disorder Act 1998, the YJB is a non-departmental public body sponsored by the Ministry of Justice. Its primary role is to ensure that the youth justice system effectively prevents offending and reoffending by children and young people under 18, while safeguarding their welfare.

Below, we explore the YJB’s purpose, structure, and key functions.

Leadership

The Youth Justice Board (YJB) for England and Wales is led by a board of experts and a chief executive, with oversight from the Ministry of Justice.

  • Chair: The YJB is chaired by Keith Fraser. The chair leads the board, providing strategic direction and ensuring effective governance. Keith Fraser, appointed in 2020, brings experience from policing and public sector leadership, with a focus on diversity and inclusion in justice systems.
  • Chief Executive: Steph Roberts-Bibby serves as the Chief Executive, overseeing day-to-day operations and implementing the board’s strategies. Sturt, who joined in 2020, has a background in criminal justice, having previously held senior roles in the prison and probation services.

The Board has corporate responsibility for ensuring that the YJB fulfils its strategic objectives, which are agreed with the Secretary of State for Justice, and for ensuring the efficient and effective use of staff and other resources.

The Chair and board members are appointed by the Secretary of State for Justice.

Purpose and Objectives

The YJB aims to create a youth justice system that is fair, effective, and focused on rehabilitation. Its core mission is to prevent crime by young people through early intervention, robust supervision, and tailored support. The board strives to balance accountability with the welfare of young offenders, recognising that many have complex needs, such as mental health issues or disadvantaged backgrounds. By promoting positive outcomes, the YJB seeks to reduce reoffending rates and help young people reintegrate into society as law-abiding citizens.

A key objective is to ensure the system is child-centred. This means decisions prioritise the best interests of the child, aligning with the principles of the United Nations Convention on the Rights of the Child. The YJB also works to address disparities, ensuring equitable treatment for all young people, regardless of background.

  • using information and evidence to form an expert view of how to get the best outcomes for children who offend and for victims of crime
  • advising the Secretary of State for Justice, government departments, local authorities, those working in youth justice services and other organisations about how well the system is operating, and how improvements can be made
  • identifying and sharing best practice
  • promoting the voice of the child, including taking advice from our youth advisory panel of children and young adults who have current or previous experience of the youth justice system
  • commissioning research and publishing information in connection with good practice
  • monitoring the youth justice system and the provision of youth justice services
  • making grants, with the approval of the Secretary of State, for the purposes of the operation of the youth justice system and services
  • providing information technology related assistance for the operation of the youth justice system and services
Youth Justice Board – Our Responsibilities

Structure and Governance

The YJB is led by a board of experts appointed by the Secretary of State for Justice. This board includes professionals with expertise in youth justice, social work, policing, and education, ensuring a multidisciplinary approach. The organisation is chaired by an appointed leader, with a chief executive overseeing day-to-day operations. It operates independently but collaborates closely with government departments, local authorities, and youth offending teams (YOTs).The YJB is headquartered in London but works nationally, engaging with regional services to implement its strategies. It reports to Parliament through the Ministry of Justice and is subject to scrutiny to ensure transparency and accountability.

Key Functions

The YJB’s responsibilities are wide-ranging. It sets standards for youth justice services, monitors their performance, and provides guidance to YOTs, which are local multi-agency teams managing young offenders. The board also oversees the secure estate, ensuring safe and rehabilitative environments for young people in custody, such as young offender institutions.

Additionally, the YJB promotes evidence-based practices by commissioning research and sharing best practices. It advises ministers on youth justice policy and advocates for systemic improvements. The board also allocates funding to YOTs and other initiatives, ensuring resources are used effectively to support prevention and rehabilitation.

Impact and Challenges

Since its inception, the YJB has contributed to a significant decline in youth offending rates, with fewer young people entering the justice system. However, challenges remain, including addressing over-representation of minority groups and supporting young people with complex needs. By fostering collaboration and innovation, the YJB continues to shape a more effective and compassionate youth justice system.

For more information, visit the Youth Justice Board for England and Wales official page on the UK government website.

Check out our related articles on Rule of Law, Open Justice, Is the Law Black and White ?, Family Justice Board, Civil Justice Council, Abuse of Process, What Does Lady Justice Symbolise ?, McKenzie Friend, Wasted Costs Order, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?,Law Society, Law Commission, McKenzie Friend Right of Audience, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

“Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial….Where there is no publicity there is no justice”

Jeremy Bentham – Mr Justice Cobb: ‘Justice must be seen to be done’

Latest Articles ↓

Most Popular ↓

You should always seek formal legal advice from a qualified and reputable lawyer (solicitor or barrister).

There are a number of links to Free and Paid For Legal Resources and Legal Organisations on the Free Legal Advice , Legal Aid and Pro Bono pages.

Categories
Civil Justice Criminal Justice Family Law Law Legal Analysis Legal Professionals

What is a Wasted Costs Order ?

Wasted Costs Order

In the legal system of England and Wales, a wasted costs order is a mechanism used by courts to address improper, unreasonable, or negligent conduct by legal representatives that results in unnecessary costs in criminal, civil or family proceedings.

This article explains what a wasted costs order is, how it applies and its significance in ensuring fairness and efficiency in the judicial process.

Definition of a Wasted Costs Order

A wasted costs order is a court order that requires a legal representative—such as a solicitor, barrister, or other advocate—to personally bear the costs incurred due to their improper, unreasonable, or negligent conduct.

These costs may be payable to the opposing party, their own client, or, in criminal cases, sometimes to public funds (e.g., the Legal Aid Agency).

The concept is governed by Section 19A of the Prosecution of Offences Act 1985 for criminal cases, Section 51(6) of the Senior Courts Act 1981 for civil cases and family cases.

Further guidance provided by the Criminal Procedure Rules 2010 (CrimPR 45.8 and CrimPR 45.9), Civil Procedure Rules (CPR 46.8 and Practice Direction 46) and Family Procedure Rules (FPR 28.1), which incorporate CPR 46.8.

“Wasted costs” refer to expenses incurred unnecessarily as a direct result of a legal representative’s conduct, which could have been avoided had they acted appropriately.

This distinguishes wasted costs orders from standard cost orders, which typically arise from the outcome of a case rather than the behaviour of legal professionals.

When Can a Wasted Costs Order Be Made ?

The court has discretion to issue a wasted costs order in both civil and criminal proceedings, but it must satisfy a strict two-stage test, as established in Ridehalgh v Horsefield [1994] Ch 205 for civil cases and reflected in criminal case law such as R v P [2011] EWCA Crim 1130. The two stages are:

  1. Improper, Unreasonable, or Negligent Conduct: The court must determine that the legal representative’s actions were improper, unreasonable, or negligent. For example:
    • Improper conduct includes dishonest or unethical behaviour, such as deliberately misleading the court or pursuing a baseless case.
    • Unreasonable conduct involves actions that are vexatious or misguided, such as persisting with a hopeless defence or prosecution in a criminal case.
    • Negligent conduct refers to failing to meet the standard of care expected of a competent legal professional, such as missing court deadlines or failing to prepare adequately.
  2. Causation of Wasted Costs: The court must be satisfied that the conduct directly caused unnecessary costs. For instance, if a barrister’s failure to advise a defendant properly in a criminal case leads to an unnecessary hearing, the costs of that hearing may be deemed “wasted.”

Courts exercise significant caution when issuing wasted costs orders due to their serious professional and financial implications for legal representatives. The burden of proof lies with the party seeking the order (or the court, if acting on its own initiative), and the threshold for proving misconduct is high.

Making an Application in Criminal, Civil and Family Proceedings

Criminal Proceedings

In criminal cases, wasted costs orders are addressed under Section 19A of the Prosecution of Offences Act 1985 and CrimPR 45.8 (which covers costs resulting from unnecessary or improper acts or omissions) and CrimPR 45.9 (which specifically deals with applications for wasted costs orders against legal representatives). These orders can apply to both prosecution and defence counsel and may involve costs payable to the opposing party, the client, or public funds (e.g., legal aid). Examples of conduct leading to wasted costs in criminal cases include:

  • A prosecution lawyer pursuing a case without sufficient evidence, causing unnecessary court hearings.
  • A defence lawyer failing to advise a client properly, leading to a trial that could have been avoided through a guilty plea or withdrawal.
  • Missing procedural deadlines, resulting in wasted court time or resources.

For instance, in R v Farooqi [2013] EWCA Crim 1649, the Court of Appeal considered a wasted costs order against a barrister whose conduct was deemed improper, though the order was ultimately not imposed due to procedural issues.

The Criminal Procedure Rule Committee and Ministry of Justice publish the Application for a wasted, etc. costs order under CrimPR 45.8, 45.9 or 45.10 form which must be served on the court and other parties.

Civil Proceedings

In civil cases, wasted costs orders are governed by CPR 46.8 and Section 51(6) of the Senior Courts Act 1981. They are typically sought by the opposing party who has incurred unnecessary costs due to the other side’s legal representative’s conduct or by a client against their own lawyer. Examples include pursuing a claim with no reasonable prospect of success or failing to comply with court orders, leading to adjournments.

  • A party can apply for a wasted costs order by filing an application notice in accordance with Part 23 of the CPR or by making an oral application during a hearing.
  • The court can also make a wasted costs order of its own initiative. 
Family Proceedings

There is no specific form titled “Application for a Wasted Costs Order” for family proceedings, just as in civil proceedings. Instead, applications are made under FPR Part 18 (Applications in Family Proceedings), which mirrors CPR Part 23.

In family proceedings, the Form C2 is typically used for applications within existing proceedings (e.g., children’s cases), while Form N244 (the standard civil application form) is used for financial remedy proceedings or where no specific family form applies.

Who Can Apply for a Wasted Costs Order ?

A wasted costs order can be sought by:

  • The opposing party in criminal, civil or family proceedings, who has incurred unnecessary costs due to the other side’s legal representative’s conduct.
  • The legal representative’s own client, if they have suffered financial loss as a result of their lawyer’s actions (e.g., wasted legal fees or costs of unnecessary proceedings).
  • The court itself, which can initiate a wasted costs order on its own motion (suo motu) if it identifies egregious conduct during proceedings.

In criminal cases, the court may also consider the impact on public funds, particularly where legal aid is involved.

The court may require written submissions or a hearing to determine whether the order is justified. Appeals against wasted costs orders in criminal proceedings follow CrimPR Part 34 (for magistrates’ courts to the Crown Court) or CrimPR Part 39 (for Crown Court to the Court of Appeal).

Examples of Conduct Leading to Wasted Costs Orders

Some examples of conduct that might lead to a wasted costs order in civil or criminal proceedings include:

  • Pursuing a case (civil or criminal) with no realistic prospect of success, such as a baseless civil claim or a criminal defence lacking any evidential foundation.
  • Failing to comply with court orders or procedural rules, leading to adjournments or additional hearings.
  • Providing misleading information to the court or failing to disclose relevant facts, such as withholding key evidence in a criminal trial.
  • Acting in a way that unnecessarily prolongs proceedings, such as making frivolous applications or failing to prepare adequately for trial.

Implications and Considerations

Wasted costs orders serve as a deterrent against poor professional conduct and promote fairness and efficiency in both civil and criminal proceedings. They protect parties from bearing the financial burden of their opponent’s or their own lawyer’s misconduct and, in criminal cases, safeguard public funds.

However, courts are cautious about issuing such orders for several reasons:

  • Professional Consequences: A wasted costs order can harm a lawyer’s reputation and financial standing, so courts ensure the evidence is robust and the conduct sufficiently serious.
  • Access to Justice: Courts avoid discouraging lawyers from taking on challenging cases or acting fearlessly, particularly in criminal defence work, where robust advocacy is essential.
  • Proportionality: The costs claimed must be proportionate to the misconduct, and minor errors or oversights are unlikely to justify an order.

Legal representatives are typically given an opportunity to respond to allegations of misconduct before an order is made, ensuring fairness and due process. In criminal cases, the court may also consider the public interest and the impact on legal aid budgets.

Conclusion

In England and Wales, a wasted costs order is a vital tool to address improper, unreasonable, or negligent conduct by legal representatives in criminal, civil and proceedings.

Governed by statute and procedural rules, these orders ensure accountability, protect parties from unnecessary costs, and uphold the integrity of the judicial process.

While rarely used due to their high threshold and significant implications, wasted costs orders play a crucial role in maintaining professionalism and efficiency in the legal system. Legal representatives must act with diligence and integrity to avoid the serious consequences of such an order.

Check out our related articles on Defendant’s Costs Order, Norwich Pharmacal Orders, Public Spaces Protection Order (PSPO), Rule of Law, Open Justice, Is the Law Black and White ?, Abuse of Process, What Does Lady Justice Symbolise ?, McKenzie Friend, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?,Law Society, Law Commission, McKenzie Friend Right of Audience, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

“Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial….Where there is no publicity there is no justice”

Jeremy Bentham – Mr Justice Cobb: ‘Justice must be seen to be done’

Latest Articles ↓

Most Popular ↓

You should always seek formal legal advice from a qualified and reputable lawyer (solicitor or barrister).

There are a number of links to Free and Paid For Legal Resources and Legal Organisations on the Free Legal Advice , Legal Aid and Pro Bono pages.

Categories
Law Police

Police Misconduct Hearings

Police Misconduct Hearings

Across the United Kingdom, police forces strive to maintain public trust by upholding high standards of professionalism and integrity. A key mechanism for achieving this is the misconduct hearing process designed to address allegations of misconduct or gross misconduct by police officers and staff.

These hearings, detailed on police websites such as the Sussex Police misconduct hearings page, provide a transparent framework for accountability.

This article explores the purpose, structure, and public accessibility of police misconduct hearings across UK forces by highlighting their role in fostering trust and how the public can engage with the process.

Purpose and Structure of Misconduct Hearings

Misconduct hearings are convened when there is evidence that a police officer or staff member has breached the Standards of Professional Behaviour, a code governing police conduct detailed in The Police (Conduct) Regulations 2008.

These standards encompass principles such as honesty, integrity, respect, and the responsible use of authority. Misconduct hearings address less severe breaches, while gross misconduct hearings tackle actions serious enough to potentially warrant dismissal.

The process ensures allegations are thoroughly investigated, with the officer or staff member given an opportunity to explain their actions. Hearings are typically chaired by a senior police officer, such as a Chief Constable or Assistant Chief Constable (a requirement in many forces since May 2024 – The Police (Conduct) (Amendment) Regulations 2024), and include independent panel members, often with a legally qualified person to ensure impartiality.

The panel reviews evidence, hears from witnesses, and determines whether misconduct has occurred, with outcomes ranging from written warnings to dismissal without notice.

Transparency and Public Access

Transparency is a cornerstone of public confidence in UK policing.

Since the 1st May 2015, gross misconduct hearings for police officers are required to be held in public, unless there’s a compelling reason to exclude the public, a significant change brought about by the Police (Conduct) (Amendment) Regulations 2015 to improve transparency and public confidence in the police disciplinary system.

This openness allows the public to scrutinise how police forces handle allegations, reinforcing accountability. However, the Chair of a hearing may hold parts or all of a hearing in private if sensitive issues, such as national security, operational tactics, or personal confidentiality, are involved.

In such cases, the public may be temporarily excluded to ensure fairness and protect sensitive information, but these decisions are made carefully to balance transparency with operational needs. The commitment to public access demonstrates that police forces take breaches of conduct seriously and are willing to be held accountable.

How the Public Can Attend

Public attendance at misconduct hearings is actively encouraged across UK police forces, reflecting their commitment to openness. Members of the public aged 18 or over can attend as observers, though they cannot participate in the proceedings. The process for attending varies slightly between forces but generally involves registering in advance, often through an online form or by contacting the force’s Professional Standards Department.

For example, Sussex Police provides a dedicated section on their website listing upcoming hearings, including the officer’s name, hearing dates, and registration details.

Date(s): 15 – 19 September 2025

Time: 10:00

Location: Sussex Police Headquarters, Church Lane, Lewes, BN7 2DZ

It is alleged that PS Day, who was based at Brighton, sexually harassed a subordinate member of staff. If proved this matter would amount to gross misconduct.

The allegation amounts to a breach of the Standards of Professional Behaviour relating to (a) Authority, respect and courtesy; and (b) Discreditable conduct.

Public notification of misconduct hearing – Former PS Day – Sussex Police

Places are allocated on a first-come, first-served basis, with priority often given to complainants, other interested parties, and representatives of the Independent Office for Police Conduct (IOPC).

The media are also allocated seats to ensure public reporting, further enhancing transparency.

Practical Considerations for Attendees

To attend a hearing, prospective attendees should check their local police force’s website for details of upcoming hearings and registration processes. Forces typically publish hearing details at least five days in advance, though short-notice cancellations can occur due to legal or operational reasons. Attendees are advised to confirm arrangements with the force, as notifications of cancellations may not always be possible.

Most forces, like Sussex Police, note that they cannot cover travel or other expenses for attendees. Accessibility is prioritised, with venues chosen to accommodate attendees where possible, though public parking and refreshments are not always available. Attendees must adhere to conditions set by the Chair, such as prohibitions on recording or broadcasting to maintain the integrity of the process. Texting or using social media may be permitted unless specific restrictions are imposed.

Check out our articles on Police Professional Standards, Policing by Consent, Police Impartiality, Police Surveillance, Are the Police for Hire ?, Independent Office for Police Conduct (IOPC),Police Public Confidence and Engagement, Crime Reporting, What is a Police and Crime Commissioner ?, Sussex Police, Policing, Police News, Two Tiered Policing, Thought Police, Wasting Police Time, Police Community Support Officers (PCSO), Met Police, Chief Constable Jo Shiner, R v Sussex Justices and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

“Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial….Where there is no publicity there is no justice”

Jeremy Bentham – Mr Justice Cobb: ‘Justice must be seen to be done’

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Free Speech Law Legal Analysis

Domain Squatting and Cyber Security ?

Domain Squatting and Cyber Security

Domain squatting, commonly referred to as cybersquatting, is the act of registering, trafficking or using an internet domain name with the intent to profit from the goodwill associated with a trademark, brand, or name belonging to another entity.

In the UK, where businesses, organisations, government departments and individuals increasingly depend on their online presence, domain squatting poses significant legal, ethical, and commercial challenges. It can undermine brand integrity, confuses consumers, and threatens the trustworthiness of the digital marketplace.

Addressing this issue requires a robust combination of legal frameworks, industry mechanisms, and proactive strategies, including guidance from authoritative sources such as the National Cyber Security Centre (NCSC).

The National Cyber Security Centre, a part of GCHQ, helps businesses, the public sector and individuals protect the online services and devices that we all depend on.

National Cyber Security Centre

How Domain Squatting Works

The mechanics of domain squatting are deceptively simple yet highly damaging. Squatters target well-known brands, public figures, or trending terms, registering domain names that closely resemble or incorporate these names. For example, a squatter might secure “brandnameuk.com” or a misspelled variant like “bradnname.com” before the legitimate owner can claim it.

Their objectives typically include selling the domain to the rightful owner at an exorbitant price, redirecting traffic to competing websites, or hosting misleading content to generate advertising revenue.

A related tactic, typosquatting, exploits common typing errors to divert users from their intended destinations, further eroding trust in online navigation. These practices not only harm brand owners but also create confusion and potential financial loss for consumers who may encounter fraudulent or misleading websites.

Legal and Industry Mechanisms in the UK

In the UK, domain squatting is addressed through a combination of legal and industry mechanisms designed to protect brand owners.

For .uk domains, the Nominet Dispute Resolution Service (DRS) offers a specialized, efficient process tailored to the .uk namespace. The DRS allows brand owners to resolve disputes by proving abusive registration or bad-faith use, making it a cornerstone of domain protection in the UK. Beyond these mechanisms, UK law provides additional recourse.

The Trade Marks Act 1994 enables trademark holders to pursue legal action against domains that infringe on their registered marks. The tort of “passing off” can also apply when a squatter’s actions mislead consumers into believing the domain is associated with the legitimate brand, causing reputational or financial harm. High-profile cases, such as those involving major brands like Marks & Spencer or Premier League football clubs, illustrate the courts’ commitment to protecting brand owners from cybersquatting.

The Uniform Domain Name Dispute Resolution Policy (UDRP), established by the Internet Corporation for Assigned Names and Numbers (ICANN), provides a global framework for trademark owners to challenge bad-faith domain registrations. To succeed under the UDRP, complainants must demonstrate that the domain is identical or confusingly similar to their trademark, that the registrant has no legitimate interest in the domain, and that it was registered or used in bad faith.

Government Guidance on Defensive Domain Registration

The Ministry of Justice (MoJ) security guidance on Defensive domain registrations emphasises defensive domain registration as a proactive strategy to combat cybersquatting. This approach involves registering multiple domain variations, including common misspellings, alternative extensions (e.g., .co.uk, .uk), and related terms, to prevent squatters from acquiring them.

The guidance advises securing domains early in the branding process, particularly for organisations with valuable intellectual property or high public visibility. It also recommends ongoing monitoring of domain registrations to detect suspicious activity, enabling swift action through Nominet’s DRS or legal channels. This proactive stance is critical for businesses seeking to safeguard their online presence and avoid costly disputes.

Some domain registrars have methods to detect malicious registrations of overtly government-associated domains through the use of misspellings and so on.

Unless there are strong justifications as to why misspellings must be covered, organisations should only defensively register .uk and .co.uk top-level domain variants and visual manipulations.

For example, the removal of one dot from justice.gov.uk leads to justicegov.uk which could be a registerable domain and one that looks a lot like justice.gov.uk during a casual inspection.

Defensive domain registrations – Ministry of Justice Security Guidance

The National Cyber Security Centre (NCSC) publishes Protecting your public domain name – NCSC.GOV.UK and many other articles on cyber security.

Ethical and Practical Implications

The ethical debate surrounding domain squatting is complex. Squatters often argue they are engaging in legitimate entrepreneurial activity by securing available digital assets in an open market.

However, their actions frequently exploit brand goodwill, mislead consumers, and undermine trust in the online ecosystem. Small businesses, in particular, are vulnerable, as they may lack the resources to pursue expensive legal battles or pay exorbitant fees to reclaim domains.

The financial and reputational damage caused by squatters can be significant, particularly when consumers encounter fraudulent websites or lose trust in a brand’s online presence.

Proactive Prevention and Solutions

Preventing domain squatting requires a multifaceted approach. Defensive domain registration, as recommended by cyber security professionals, is a critical first step. Businesses should also leverage monitoring services to track new registrations that may infringe on their brand.

Nominet’s DRS and other registry tools facilitate rapid detection and resolution of disputes, while legal action can reclaim hijacked domains when necessary.

However, prevention remains the most effective strategy. Public awareness, robust enforcement by Nominet, and adherence to government guidance play vital roles in mitigating the risks of cybersquatting.

Cyber Security Failure of MI5 and SIS (MI6) ?

For reasons unknown, MI5 – The Security Service (mi5.gov.uk) didn’t register the domain mi5gov.uk. CI5/MOI registered it to protect MI5 from domain squatting and other cyber attacks.

For reasons unknown, MI6 (sis.gov.uk) didn’t register the domain sisgov.uk. CI5 / MOI registered it to protect MI6 from domain squatting and other cyber attacks.

The mi5gov.uk domain registration did not trigger the expected domain suspension whereas the sisgov.uk domain registration did.

Thank you for registering the domain name sisgov.uk. We are writing to let you know that this domain has been temporarily deactivated and what you can do to reactivate it. You should be able to find all the information you need below but if you need any help, please contact our Customer Support team on 0330 236 9477.

The domain sisgov.uk has triggered a score that requires us to verify some additional information. This domain is still registered in your name – simply follow the steps below to reactivate it.

To reactivate your domain, we need the following details:

• Tell us what this domain will be used for.
• You will need to verify your identity, we use Mitek an identity verification service to complete this. This will involve taking a live picture, similar to a passport photo, via your device and uploading your identification documents for photo ID and proof of address.

Nominet Customer Support– 9:17am

Nominet publishes Terms And Conditions of Domain Name Registration. Specifically 6.1.5 states that you will not use the domain name for any unlawful purpose.

Hi,

Thank you for your email and completing the Mitek verification.

I can confirm the domain name is now active.

Thank you again.

Kind regards,

Nominet UK
Registry Compliance Advisor

Nominet Registry Compliance Advisor – 10:39am

As with all the MOI domains, these domains will continue to be used for a lawful purpose.

Check out our related articles on Domain Names and Freedom of Expression, Free Speech Union, Rule of Law, Open Justice, Is the Law Black and White ?, What Does Lady Justice Symbolise ?, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?, Law Society, Law Commission, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

“Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial….Where there is no publicity there is no justice”

Jeremy Bentham – Mr Justice Cobb: ‘Justice must be seen to be done’

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There are a number of links to Free and Paid For Legal Resources and Legal Organisations on the Free Legal Advice , Legal Aid and Pro Bono pages.

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Criminal Justice Law Legal Analysis Police

Police Surveillance

Police Surveillance

The case of R v Sutherland & Others [2002] EW Misc 1 (EWCC) stands as a seminal case that highlights the critical importance of transparency in criminal investigations and the protection of defendants’ rights to a fair trial under Article 6 of the Human Rights Act 1998.

This high-profile murder trial collapsed due to improper police conduct, leaving a lasting impact on the application of the Criminal Procedure and Investigations Act 1996 (CPIA) and the Regulation of Investigatory Powers Act 2000 (RIPA).

The case serves as a stark reminder of the boundaries of lawful surveillance and the necessity of proper disclosure in criminal proceedings.

Background of the Case

The case involved Robert Sutherland and four co-defendants, charged with murder and conspiracy to murder following a fatal incident in the Midlands.

The prosecution’s case hinged on evidence obtained through covert surveillance, including audio recordings made at Grantham and Sleaford police stations.

However, it was revealed that the police had secretly recorded privileged conversations between the defendants and their legal advisors, violating the defendants’ right to confidential legal consultation.

This misconduct led to an application to stay the proceedings on the grounds of abuse of process, arguing that the surveillance had fatally undermined the trial’s fairness.

The High Court judge agreed, ruling that the police had “made a mockery of the police caution” and “undermined the statutory right of a defendant to confer with a solicitor in private.” As a result, the case was dismissed, and all defendants were acquitted.

Impact on Disclosure Obligations

R v Sutherland & Others [2002] significantly clarified disclosure obligations under the CPIA 1996. The Act requires the prosecution to disclose all material that might undermine their case or assist the defence.

The case established that even non-incriminating surveillance evidence, such as recordings yielding no useful evidence, must be disclosed. The court emphasised that the existence of surveillance itself is material, as it may support defence arguments questioning the investigation’s thoroughness or integrity.

For example, extensive surveillance producing no incriminating results could strengthen a claim of innocence. This ruling has shaped how prosecution teams manage evidence, stressing meticulous record-keeping and transparency to ensure fairness.

Implications for Surveillance Practices

The case also exposed serious issues with police surveillance under RIPA 2000, which governs covert investigative techniques.

The unauthorised recording of privileged communications breached RIPA’s requirements for lawful, proportionate, and authorised surveillance.

The court’s strong condemnation highlighted the risks of overreach in surveillance operations and their potential to derail prosecutions.

This aspect of the case has led to increased scrutiny of police practices and reinforced the importance of independent oversight, such as by Surveillance Commissioners, to ensure compliance with RIPA.

Directed Surveillance Authority under the Regulation of Investigatory Powers Act 2000

The Regulation of Investigatory Powers Act 2000 (RIPA) provides the legal framework for authorising directed surveillance in the UK, which involves covert monitoring of individuals’ activities in non-intrusive settings, such as public places, to gather intelligence for investigations.

Directed Surveillance Authority (DSA) under RIPA requires that such operations be necessary, proportionate, and approved by a designated senior officer within a public authority, such as the police or intelligence services.

The DSA ensures compliance with strict criteria to prevent abuse, safeguarding individuals’ privacy while enabling lawful investigations. Oversight by the Investigatory Powers Commissioner’s Office (IPCO) ensures adherence to RIPA’s guidelines, with failures to comply, as seen in cases like R v Sutherland & Others [2002], potentially leading to evidence being deemed inadmissible and undermining prosecutions.

As per the requirements of R v SUTHERLAND, if the task has a RIPA / DSA authorisation, NPAS will require a full copy of the DSA authorisation detailing exactly what is (and isn’t) authorised and the means by which it can be obtained, details of the authorising officer, date authorised and the review / expiry dates before that tasking can be actioned.

National Police Air Service – NPAS – OPERATIONS CENTRE FORM – REQUEST FOR PRE-PLANNED AIR SUPPORT

Broader Consequences and Legacy

The collapse of the trial raised concerns about public confidence in the criminal justice system. The acquittal, while legally justified, left the victim’s family feeling “completely let down,” underscoring the human cost of investigative failures.

The case has been widely cited in discussions about the ethical limits of covert operations and the need for robust training for law enforcement.

The Signature Brand have integrated the case into training on disclosure and covert tactics, highlighting its practical implications. For defence lawyers, it provides a powerful tool to challenge prosecution cases by scrutinising disclosure completeness, particularly in surveillance-heavy cases.

Conclusion

R v Sutherland & Others [2002] remains a cornerstone of UK case law, reinforcing the principles of fairness, transparency, and accountability in criminal proceedings.

Its legacy continues to influence how surveillance evidence and disclosure are handled, ensuring defendants’ rights are protected while upholding judicial integrity. The case serves as a cautionary tale that procedural missteps, even if well-intentioned, can have profound consequences, highlighting the delicate balance between effective policing and adherence to the rule of law.

Check out our articles on Policing by Consent, Are the Police for Hire ?, Police Impartiality, Police Professional Standards, Independent Office for Police Conduct (IOPC),Police Public Confidence and Engagement, Crime Reporting, What is a Police and Crime Commissioner ?, Sussex Police, Policing, Police News, Two Tiered Policing, Thought Police, Wasting Police Time, Police Community Support Officers (PCSO), Met Police, Free Speech Union, Chief Constable Jo Shiner, R v Sussex Justices and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

“Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial….Where there is no publicity there is no justice”

Jeremy Bentham – Mr Justice Cobb: ‘Justice must be seen to be done’

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Criminal Justice Law Legal Analysis

What is an Abuse of Process in Criminal Law ?

Abuse of Process in Criminal Law

In criminal law an abuse of process occurs when the criminal justice system is misused in a way that undermines fairness, justice or the integrity of legal proceedings.

It involves actions that exploit the judicial process for improper purposes, such as harassing a defendant, causing unjust delays, or pursuing a case without legitimate grounds.

The concept is enshrined in the court’s inherent jurisdiction to protect its processes, as guided by the Criminal Procedure Rules 2020(CrimPR) and established case law.

Defining Abuse of Process

An abuse of process arises when the prosecution’s conduct or case circumstances render a fair trial impossible or unjust.

CPR Rule 3.28, part of the case management framework, empowers courts to give directions to ensure proceedings are conducted efficiently and fairly, which includes identifying and addressing potential abuses of process.

This rule supports the overriding objective in CPR 1.1 to deal with cases justly, ensuring fairness, efficiency, and compliance with the European Convention on Human Rights and Human Rights Act 1998, particularly Article 6 (right to a fair trial). Examples of abuse of process include:

  1. Improper Motives: Prosecuting to harass or intimidate rather than seek justice.
  2. Unreasonable Delay: Excessive delays that prejudice the defendant’s defence, such as faded memories or lost evidence.
  3. Non-Disclosure: Failing to disclose exculpatory evidence, breaching the Criminal Procedure and Investigations Act 1996.
  4. Entrapment: Inducing a defendant to commit a crime they would not otherwise have committed.
  5. Bad Faith Prosecutions: Pursuing a case without sufficient evidence or for ulterior motives, like political pressure.

Legal Framework

The Criminal Procedure Rules 2020 (CrimPR) are a comprehensive set of rules governing the practice and procedure of criminal courts in England and Wales. They provide a framework to ensure criminal cases are managed justly, efficiently, and fairly, as mandated by the Courts Act 2003, which empowers the Criminal Procedure Rule Committee to make these rules.

CrimPR 1.1, the overriding objective, requires courts to manage cases to avoid unfairness, inefficiency, or prejudice. Unlike specific statutory provisions in other contexts, criminal abuse of process relies on judicial discretion and precedent.

1.1.—(1) The overriding objective of this procedural code is that criminal cases be dealt with justly.

(2) Dealing with a criminal case justly includes―

(a) acquitting the innocent and convicting the guilty;

(b) treating all participants with politeness and respect;

(c) dealing with the prosecution and the defence fairly;

(d) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;

(e) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;

(f) dealing with the case efficiently and expeditiously;

(g) ensuring that appropriate information is available to the court when bail and sentence are considered; and

(h) dealing with the case in ways that take into account―

(i) the gravity of the offence alleged,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the defendant and others affected, and

(iv) the needs of other cases.

The Criminal Procedure Rules 2020 – 1.1 The Overriding Objective

CrimPR 1.2 outlines the duty of all participants in a criminal case to actively assist the court in achieving the overriding objective.

1.2.—(1) Each participant, in the conduct of each case, must―

(a) prepare and conduct the case in accordance with the overriding objective;

(b) comply with these Rules, practice directions and directions made by the court; and

(c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.

(2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.

The Criminal Procedure Rules 2020 – 1.2 The duty of the participants in a criminal case

CrimPR 3.28 allows courts to give directions for the effective management of criminal cases, which includes addressing abuses of process. While the rule itself focuses on case progression, it enables judges to scrutinise proceedings for potential misuse, ensuring they align with the overriding objective of fairness.

3.28.—(1) This rule applies where a defendant wants the Crown Court to stay the case on the grounds that the proceedings are an abuse of the court, or otherwise unfair.

(2) Such a defendant must—

(a) apply in writing—

(i) as soon as practicable after becoming aware of the grounds for doing so,

(ii) at a pre-trial hearing, unless the grounds for the application do not arise until trial, and

(iii) in any event, before the defendant pleads guilty or the jury (if there is one) retires to consider its verdict at trial;

(b) serve the application on—

(i) the court officer, and

(ii) each other party; and

(c) in the application—

(i) explain the grounds on which it is made,

(ii) include, attach or identify all supporting material,

(iii) specify relevant events, dates and propositions of law, and

(iv) identify any witness the applicant wants to call to give evidence in person.

(3) A party who wants to make representations in response to the application must serve the representations on—

(a) the court officer; and

(b) each other party,

not more than 10 business days after service of the application.

The Criminal Procedure Rules 2020 – 3.28 Application to stay case for abuse of process

The landmark case R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 AC 42 established that courts can stay or dismiss proceedings deemed abusive. Rule 3.28 supports this by providing a mechanism for courts to intervene when proceedings risk unfairness or oppression.

Unlike specific statutory provisions in other contexts, criminal abuse of process relies on judicial discretion, with Rule 3.28 facilitating proactive case management to prevent or remedy abuses. Courts assess whether continuing a case would undermine public confidence or violate defendants’ rights.

Judicial Response

Courts have broad powers to address abuse of process, including:

  • Staying Proceedings: Halting a case if a fair trial is impossible or unjust, as supported by CrimPR Rule 3.28 directions.
  • Dismissing Charges: Dropping charges due to prosecutorial misconduct.
  • Excluding Evidence: Suppressing improperly obtained evidence under Section 78 of the Police and Criminal Evidence Act 1984.

For instance, in R v Beckford [1996] 1 Cr App R 94, non-disclosure of evidence was deemed an abuse, prompting judicial intervention. Similarly, R v Maxwell [2010] UKSC 48 clarified that remedies depend on the abuse’s severity and impact on fairness.

Importance of Preventing Abuse of Process

Preventing abuse of process, as facilitated by CrimPR Rule 3.28, is vital to maintaining public trust in the criminal justice system. It protects defendants from oppressive treatment, ensures efficient use of court resources, and upholds the integrity of proceedings.

Check out our related articles on Rule of Law, Open Justice, Is the Law Black and White ?, What Does Lady Justice Symbolise ?, Wasted Cost Orders, McKenzie Friend, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?, Law Society, Law Commission, McKenzie Friend Right of Audience, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

“Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial….Where there is no publicity there is no justice”

Jeremy Bentham – Mr Justice Cobb: ‘Justice must be seen to be done’

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Most Popular ↓

You should always seek formal legal advice from a qualified and reputable lawyer (solicitor or barrister).

There are a number of links to Free and Paid For Legal Resources and Legal Organisations on the Free Legal Advice , Legal Aid and Pro Bono pages.

Categories
Criminal Justice Law Legal Analysis

McKenzie Friends and Right of Audience in a Magistrates or Crown Court

McKenzie Friends and Right of Audience in a Magistrates or Crown Court

A McKenzie Friend can provide moral support, take notes, help organise case papers, and offer quiet advice on the conduct of the case. They do not have an automatic right to act as an advocate, conduct litigation, or address the court.

Can a McKenzie Friend Help You in Court? Everything* You Need to Know! – Alan Robertshaw Barrister

Right of Audience

In criminal proceedings, McKenzie Friends generally do not have a right of audience. This means they cannot speak on behalf of the litigant, make oral submissions or examine witnesses unless the court explicitly grants permission.

The court may grant a right of audience in exceptional circumstances, but this is rare. The decision is at the discretion of the presiding magistrate or judge, guided by the interests of justice.

Examples of exceptional circumstances may include:

  • The litigant has health issues preventing them from effectively addressing the court.
  • The litigant lacks the ability to articulate their case (e.g., due to language barriers or intellectual limitations).
  • The complexity of the case requires assistance to ensure a fair hearing.

Criminal vs Family and Civil Procedure

Unlike civil and family proceedings, where guidance like the Practice Guidance: McKenzie Friends (Civil and Family Courts) (2010) applies, criminal proceedings are not explicitly covered by this guidance.

Courts in criminal cases are more cautious about granting rights of audience due to the serious nature of criminal proceedings, which involve public interest and potential penalties like imprisonment.

The Legal Services Act 2007 (sections 12–19 and Schedule 3) makes it a criminal offense for an unqualified person to exercise rights of audience or conduct litigation unless authorised by the court on a case-by-case basis.

Court’s Discretion and Restrictions

A litigant must request permission for a McKenzie Friend to have a right of audience at the start of the hearing. The court will consider factors such as:

  • The litigant’s ability to represent themselves.
  • The complexity of the legal issues.
  • Whether the McKenzie Friend’s involvement would impede the administration of justice.

The court may refuse or revoke permission if the McKenzie Friend disrupts proceedings, acts improperly, or breaches confidentiality.

The court may also require the McKenzie Friend to provide their name, contact details, and a statement confirming they understand their role and duties, including confidentiality.

Court Denying a McKenzie Friend the Right of Audience

A judge is expected to provide reasons when denying a McKenzie friend the right of audience (permission to speak on behalf of a litigant in person).

This aligns with principles of fairness and transparency under Legal Services Act 2007 (c. 29), specifically under sections 208, 210, 211, Schedule 21 paragraph 84(d), and Schedule 23, which gives courts discretion to grant such rights only for “good reason,” typically in exceptional circumstances.

The Practice Guidance on McKenzie Friends (Civil and Family Courts) [2010] 1 WLR 1881 emphasises that decisions should be justified to ensure litigants understand the basis for refusal, allowing for potential appeals by the litigant (not the McKenzie friend).

Practical Considerations

In magistrates’ courts, where proceedings are often faster-paced and less formal than in higher courts, magistrates may be more reluctant to allow a McKenzie Friend to speak, as the litigant is normally expected to represent themselves.

If a McKenzie Friend is granted a right of audience, their role is still limited to specific tasks (e.g., addressing a point of law or cross-examining a witness) rather than acting as a full advocate throughout the hearing.

Fee-charging McKenzie Friends are viewed with caution, and courts may scrutinise their involvement to ensure they are not acting as unqualified legal representatives.

Relevant Guidance and Rules

While the Practice Guidance: McKenzie Friends (Civil and Family Courts) (2010) does not apply to criminal cases, it provides a framework that courts may refer to analogously.

The Criminal Procedure Rules 2010 do not specifically address McKenzie Friends but emphasise the court’s overriding objective to deal with cases justly, which includes ensuring a fair hearing for unrepresented defendants.

Article 6 of the European Convention on Human Rights (incorporated into UK law via the Human Rights Act 1998) supports the right to a fair trial, which may bolster a litigant’s request for assistance from a McKenzie Friend.

Case Law and Precedents

McKenzie v McKenzie [1970] 3 WLR 472 CA: Established the principle that litigants in person have a right to reasonable assistance.

Clarkson v Gilbert [2000] 2 FLR 839: Clarified that the court has unfettered discretion to grant a right of audience, and such decisions should not be limited to “exceptional” circumstances but depend on the case’s specifics.

Re N (A Child) (McKenzie Friend: Rights of Audience) [2008] EWHC 2042 (Fam): Emphasised that granting a right of audience should serve the interests of justice and that courts should consider the practical realities of limited legal aid availability.

Limitations and Risks of McKenzie Friends

McKenzie Friends are not regulated like solicitors or barristers, so there is no guarantee of their competence or accountability. Courts may exclude a McKenzie Friend if they undermine the efficient administration of justice (e.g., by providing improper advice or disrupting proceedings).

Litigants using a McKenzie Friend cannot recover costs for their services from the opposing party, even if successful, as costs are limited to those of a litigant in person.

Explanation of Clarkson v Gilbert

Clarkson v Gilbert [2000] 2 FLR 839 is a significant Court of Appeal case in England and Wales that clarified the principles governing the granting of a right of audience to a non-lawyer, such as a McKenzie Friend or a close relative, under section 27(2)(c) of the Courts and Legal Services Act 1990.

The case is particularly relevant to litigants in person who seek assistance from unqualified individuals to represent them in court proceedings, including in criminal, civil, or family matters.

Factual and Procedural Background

Parties and Context: The claimant, Petruska Clarkson, a psychotherapist, initiated legal proceedings against multiple defendants (also psychotherapists) alleging conspiracy, inducement to breach contract, and libel. These claims arose after her suspension from the Gestalt Psychotherapy Training Institute.

McKenzie Friend: Clarkson’s husband, Vincent Keter, who had a law degree and had completed Bar finals but was not yet called to the Bar, sought to represent her in court. He applied for a right of audience to act as her advocate in the litigation, including at trial and interlocutory hearings.

Initial Order: On 14 May 1999, Morland J granted Keter an ex parte order (without notice to the defendants) allowing him rights of audience under section 27(2)(c) of the Courts and Legal Services Act 1990, citing Clarkson’s ill health (an angina attack and depression) and her lack of financial means to hire legal representation.

Challenge: The defendants applied to set aside Morland J’s order, arguing insufficient evidence (e.g., outdated medical reports) and Keter’s questionable conduct, including misrepresenting himself as an advocate. On 16 December 1999, Eady J set aside the order, prompting Clarkson’s appeal to the Court of Appeal.

Appeal: The Court of Appeal, presided over by Lord Woolf CJ, alongside Waller LJ and Clarke LJ, heard the appeal on 14 June 2000. The key issue was whether Keter, as a close relative and non-lawyer, should be granted a right of audience to represent Clarkson.

Legal Issues

The court addressed the following legal questions:

  • Whether a close relative, such as a spouse, should be granted a right of audience under section 27(2)(c) of the Courts and Legal Services Act 1990.
  • Whether “exceptional circumstances” are required to grant such rights to an unqualified person, particularly a family member.
  • The appropriate exercise of judicial discretion in such cases, balancing the interests of justice with the proper administration of the courts.
  • Court’s Reasoning and Decision: The Court of Appeal allowed Clarkson’s appeal, restoring Morland J’s order granting Keter rights of audience.
  • Judicial Discretion Under Section 27(2)(c): Section 27(2)(c) of the Courts and Legal Services Act 1990 allows courts to grant a right of audience to a person not otherwise entitled, in relation to specific proceedings, at the court’s discretion.
  • The court emphasised that this discretion is unfettered but must be exercised in light of the statutory objective in section 17(1) (to develop legal services while maintaining the proper administration of justice) and section 17(3) (general principles governing professional advocates).
  • Distinction Between Professional and Family Advocates: The court distinguished between unqualified individuals offering advocacy services generally (e.g., professional McKenzie Friends) and close relatives assisting a family member.

    For professional McKenzie Friends, the court typically requires exceptional circumstances to grant a right of audience, as established in D v S (Rights of Audience) [1997] 1 FLR 724. This is because such individuals may lack professional regulation and accountability. For close relatives, such as a spouse, the test is less stringent.

    The court held that the question is whether there is good reason to grant the right of audience, based on the specific circumstances of the case, rather than requiring exceptional circumstances.
  • Factors Justifying a Right of Audience: Lord Woolf CJ noted that the overriding objective is to ensure justice is done. With legal aid less readily available, litigants in person may need assistance to present their case effectively.

    Relevant factors include the litigant’s health (e.g., Clarkson’s angina and depression) and financial means (e.g., inability to afford legal representation after unsuccessful attempts to secure conditional fee arrangements or pro bono assistance).

    In this case, the court found that Clarkson’s health issues and lack of means justified allowing Keter to act as her advocate, as there was a risk she would be deprived of a fair hearing otherwise.
  • Critique of the Lower Court: The court held that Eady J erred by applying the “exceptional circumstances” test from D v S to a case involving a close relative.

    Clarke LJ clarified that the discretion under section 27(2)(c) is not fettered by a requirement for exceptional circumstances in such cases. Instead, the court must consider whether it is just to permit the advocate, based on the case’s facts.
  • Practical Considerations: The court acknowledged that litigants in person have a right to conduct their own litigation but may need assistance due to practical difficulties. A McKenzie Friend’s role (e.g., giving advice or taking notes) does not automatically extend to advocacy unless the court grants permission.

    The court noted concerns about Keter’s conduct (e.g., describing himself as an advocate) but found these insufficient to deny the right of audience, given the need to ensure justice for Clarkson.

    The court emphasised that the litigant should generally apply in person for such permission at the start of the hearing, allowing the court to assess the need directly.
  • Statutory Framework: The court highlighted the tension between allowing a close relative to act as an advocate and the statutory duties under section 27(2A) of the Courts and Legal Services Act 1990, which require advocates to act with independence and comply with professional conduct rules. A family member may struggle to maintain such independence, but this did not preclude granting the right in this case.
  • Holding and Implications: The Court of Appeal allowed the appeal, restoring Keter’s right of audience to represent Clarkson in the litigation.

    The court found that her ill health and lack of means constituted good reason for granting the right, and the decision was necessary to ensure justice.
    • Implications: The case clarified that the test for granting a right of audience to a close relative is whether there is good reason, not necessarily exceptional circumstances, distinguishing such cases from those involving professional McKenzie Friends.

    It recognised the practical reality of reduced legal aid availability, increasing the need for assistance for litigants in person.

    The decision reinforced the court’s discretion to balance the interests of justice with the need to maintain proper administration, particularly in cases where the litigant’s ability to represent themselves is impaired.

    The case remains a key authority in determining when McKenzie Friends or relatives may be granted rights of audience, especially in civil and family proceedings, and its principles are often applied analogously in criminal proceedings (though courts are more cautious in criminal cases due to their seriousness).

Conclusion

While Clarkson v Gilbert was a civil case, its principles are relevant to magistrates’ and crown courts in criminal proceedings:

Check out our related articles on Magistrate, Chief Magistrate, Dodgy Magistrates, Rule of Law, Open Justice, Is the Law Black and White ?, What Does Lady Justice Symbolise ?, McKenzie Friend, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?,Law Society, Law Commission, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

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HM Courts and Tribunals Service (HMCTS) Dishonest Coverup ?

HMCTS Coverup IT Bug

A serious IT glitch in the HM Courts & Tribunals Service (HMCTS) system in England and Wales has sparked allegations of a cover-up, raising concerns about the integrity of judicial rulings.

The software – known variously as Judicial Case Manager, MyHMCTS or CCD – is used to manage evidence and track cases before the courts. It is used by judges, lawyers, case workers and members of the public.

Courts service HMCTS ‘covered up’ IT bug that caused evidence to go missing – BBC

A leaked internal report revealed that a software flaw, present for several years before its discovery in 2023, caused critical evidence to go missing, be overwritten, or appear lost in civil, family, and tribunal courts.

This issue, which potentially affected thousands of cases, has led to accusations that HMCTS failed to act promptly or transparently, leaving judges to make rulings based on incomplete evidence. The scandal has drawn sharp criticism from legal experts and raised fears of widespread miscarriages of justice, particularly in sensitive family court cases involving child protection.

A briefing prepared for the chief executive of HMCTS (Nick Goodwin)- dated March 2024 – reveals the risk to proceedings was initially categorised as “high” with the possibility of court outcomes being adversely affected assessed as “very likely”, resulting in “severe reputational impact to HMCTS“.

Courts service HMCTS ‘covered up’ IT bug that caused evidence to go missing – BBC

Specific details about the development team or external contractors involved in the the case-management software, referred to as Judicial Case Manager, MyHMCTS, or Common Components Division (CCD)are not publicly disclosed or available.

Sources

HMCTS Bug and Coverup

The IT bug, embedded in software introduced in 2018, was not addressed until 2023, despite internal awareness of data loss issues. Sources within HMCTS, as reported by the BBC, claim that HMCTS did not inform judges or lawyers about the fault, even after it was identified.

One alarming instance highlighted in the report involved over 4,000 documents vanishing from hundreds of public family law cases, including those related to child protection.

The failure to disclose the issue has fuelled allegations of a deliberate cover-up, with one HMCTS source stating, “There is a culture of cover-ups. They’re not worried about risk to the public, they’re worried about people finding out about the risk to the public.”

The internal report, obtained by the BBC, revealed that HMCTS did not conduct a comprehensive investigation into the extent of the data corruption or its impact on case outcomes.

Of the 609 cases identified with potential issues, only 109 were selected for further review, with just one deemed to have a “potentially significant impact.”

Critics, including Sir James Munby, former President of the Family Division, have called the incident “shocking” and “a scandal,” arguing that the lack of a thorough investigation undermines trust in the judicial system. Munby emphasised that the absence of a formal legal review of affected cases makes it impossible to confidently assert that no miscarriages of justice occurred.

The software’s flawed design has also come under scrutiny. Sources described it as “not designed properly or robustly,” with a history of data loss that was inadequately addressed. This has led to broader concerns about the reliability of digital systems in critical public services.

The irony of HMCTS’s claim that its internal investigation found “no evidence” of affected case outcomes was not lost on commentators, with some, like a user on Singletrack World Magazine, noting the darkly humorous implication of an evidence-losing system finding no evidence of harm.

HMCTS has since stated that the IT bug was fixed in 2023, though specific details about the timeline of the fix or the measures taken to prevent future issues remain sparse. HMCTS maintains that its internal investigation found no significant impact on case outcomes, but this claim has been met with scepticism due to the limited scope of the review.

Miscarriage of Justice ? – Art of Law

Conclusion

The fallout from this scandal has broader implications for public trust in the UK’s judicial system. Social media platforms have seen users express dismay, with one stating, “There seems to be a chronic lack of accountability in the UK state at the moment. And if you can’t trust the courts, where do you even start?” The incident has also reignited discussions about the risks of over-reliance on digital infrastructure in critical sectors, particularly when systems are not rigorously tested or maintained.

Families and individuals affected by the data loss may face significant challenges in seeking justice. Researching Reform, a legal advocacy group, noted that many families had previously complained about missing evidence in their cases, suggesting that the IT bug may have contributed to wrongful rulings. As calls grow for a formal inquiry, the HMCTS scandal serves as a stark reminder of the need for transparency, accountability, and robust technological systems in the administration of justice.

The High Court Judge that never was – His Honour Judge Melbourne Inman KC !

Check out our related articles on Rule of Law, Open Justice, Is the Law Black and White ?, What Does Lady Justice Symbolise ?, Can a Judge Direct a Jury to Find a Defendant Not Guilty ?, Law Society, Law Commission, Solicitors, Solicitors Regulation Authority, Barristers, Bar Council of England and Wales, Bar Standards Board, Contra Mundum, R v Sussex Justices, Police Impartiality and the highly questionable Sussex Family Justice Board.

The Ministry of Injustice is not the Ministry of Justice nor is it affiliated in any way with the justice system, legal profession, police or any other law enforcement agencies.

“Publicity is the very soul of justice. . . . It keeps the judge himself, while trying, under trial….Where there is no publicity there is no justice”

Jeremy Bentham – Mr Justice Cobb: ‘Justice must be seen to be done’

Latest Articles ↓

Most Popular ↓

You should always seek formal legal advice from a qualified and reputable lawyer (solicitor or barrister).

There are a number of links to Free and Paid For Legal Resources and Legal Organisations on the Free Legal Advice , Legal Aid and Pro Bono pages.

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