Custody A Guide for Prisoners and their Families

On entry into prison prisoners go through the ‘induction process’. Some prisons have a dedicated induction wing for this. All prisoners who have never been in custody before will go through this procedure, as will prisoners who have gone from being remand prisoners to convicted prisoners. The length of stay in induction will vary, depending on whether or not they have been in prison before, or if they are considered vulnerable.


Prisoners who are on remand should not be in contact with convicted prisoners. This means that no remand prisoner should ever be put in a cell with a convicted prisoner. A ‘convicted’ prisoner is someone who has been sentenced, or who has either pleaded guilty or been found guilty after a trial and is awaiting sentence.

When a prisoner is on remand, they are generally categorised as ‘U’ prisoners, and are in most circumstances put into Category B or C local prisons. On entry into the prison system, a remand prisoner should also be put into the ‘standard’ level of the IEP (Incentives and earned privileges) scheme. They should only be put on ‘basic’ IEP as a result of behavioural problems.

Remand prisoners are not required to work in prison if they don’t want to. They can wear their own clothes (unless deemed an escape risk), are allowed to purchase books, newspapers etc with their own money and can carry out business activities, in so far as is possible. They can have as many visits as they like, within reason, have a greater tobacco allowance than convicted prisoners, and can receive medical or dental treatment from a practitioner of their choice, if they are willing to cover the cost themselves. Private weekly cash allowances for unconvicted prisoners are considerably higher than for convicted prisoners.


Prisoners who have been charged with certain offences such as murder, section 18 GBH, rape, robbery, arson with intent to endanger life, and other offences that are likely to attract a sentence of more than 10 years, will be put into ‘provisional category A’. Visitors to provisional Category A and Category A prisoners must be ‘approved.’ What this means is that visits will be closed until open visits have been approved.

Visits to exceptional high-risk category A prisoners will be subject to background checks by the police so there will be a delay between being remanded and having visits from relatives. That said, the delay cannot be for longer than is reasonable. Prisoners who are experiencing considerable delays in this regard should seek legal advice.

Sentences Explained

Determinate Sentences
Sentence lengths and release dates can be very complicated. It all depends on the type of sentence, when the offence was committed, when the sentencing hearing was and whether it's a long or short sentence (under or over four years). It can be extremely confusing if you are sentenced for an offence committed a long time ago, such as a sex offence. If in doubt about your sentence, contact a solicitor for advice.

How To Calculate Your Release Date
A) Less than 4 years for an offence committed before 4th April 2005
You will be released automatically at the half way point. You do not need to apply for parole and the parole board does not consider your case.

B) 4 years or more for an offence committed before 4th April 2005
Once you have served half of your sentence you can apply to the Parole Board for early release. This date is called the ‘Parole Eligibility Date’ or PED. If your sentence is less than 15 years, the Parole Board decides whether or not you should be released. If your sentence is more than 15 years, the Secretary of State makes the decision as to whether you should be released or not. If you don’t get parole, you can reapply once a year. If this happens you will be released once you have served two thirds of your sentence, on your Non-Parole Date or NPD. Once you are released, you will be on licence and be supervised by probation until your Licence Expiry Date (LED), which is at the three-quarter point of your sentence. You can be recalled to prison at any time until your licence runs out. If you have been sentenced for a sexual offence, the sentencing judge may have ordered that your licence lasts until the very end of your sentence, known as the Sentence Expiry Date (SED.)

C) Extended Sentence for an offence committed before 4th April 2005
These may apply to you if you were sentenced for a sexual or violent offence. An extended sentence means that your licence will be longer than normal, and you can be recalled to prison at any time during your licence. If your sentence was less than four years, you will be released at the half-way point. If you received more than four years, your release will depend on whether or not you get parole. See paragraph B above for details.

D) More than 12 months for an offence committed on or after 4th April 2005
This section applies if at least one of the offences you have been sentenced for was for 12 months or more. There are two different types of sentences:

i) Determinate sentences for a fixed amount of time. You will be released automatically half way through your sentence.

ii) Extended Sentence for Public Protection. If the offence was sexual or violent, you may be given a number of years in prison and a longer than normal licence period. You can apply for parole at the half way point of your sentence. The parole process starts about six months before this, to enable your reports to be prepared etc. If you do not get parole, you can reapply once per year until the prison part of your sentence expires. On release, you are on licence and can be recalled to prison until the licence period runs out.

E) Less than 12 months for a crime committed on or after 4th April 2005
Some areas have introduced ‘custody plus’, which is a scheme that allows you to spend some of your time in the community and some in prison. If you break the conditions of your licence, you can be recalled to prison. If you received a sentence of imprisonment of less than 12 months, which was suspended, you can be sent to prison if you break the terms of the order made by the sentencing judge.

Release: Determinate Sentences

Home Detention Curfew
If you are eligible for HDC, your HDC date will be calculated at the same time as your statutory release date. You cannot be released on HDC until you have served a minimum period of your sentence, which depends how long your sentence is and the minimum amount of time you need to serve before you can be released on HDC. How long this is will depend which sentencing laws apply to you. If you have been found to be unsuitable for HDC, or if you think the dates that the prison has calculated are wrong, contact a solicitor without delay.

Parole for Prisoners Serving Determinate Sentences
You can apply for parole up to six months before the first date when you are eligible to be released (your Parole Eligibility Date). This date will vary depending on the sentence you were given when you were convicted. At the earliest, this will be after you have served half of your sentence (see above). You should always seek legal advice well in advance if you are applying for parole. If you don’t get parole on the first occasion, you will usually be reviewed once a year.

Indeterminate Sentences
Indeterminate sentences are different from determinate sentences because there is no set date on which the prisoner will be released. Prisoners who serve determinate sentences know the maximum length that their sentence will be, and when they will become eligible for parole or early release. Prisoners serving indeterminate sentences are required to serve a ‘minimum term’, which used to be called a ‘tariff,’ before being eligible for release on licence.


Life Sentences for Adults
A sentence for adult offenders convicted of murder must be a life sentence: there is no way around this. A judge can also impose a life sentence for other serious offences. These include serious sexual assaults, manslaughter, arson and attempted murder. If a prisoner is convicted of these kinds of offences, the judge does not have to impose a life sentence but has discretion to do so. In order to impose a discretionary life sentence, certain conditions have to be met. These are:

i) the maximum sentence for the offence has to be life imprisonment

ii) the offender is dangerous or deemed to be a significant risk as set out by statute law (Criminal Justice Act 2003 section 225)

It used to be the case that some prisoners got ‘automatic life sentences’. These were imposed on individuals aged 18 or over who were convicted of their second ‘serious’ offence – and who posed a threat to the public. After the CJA 2003 came into force, this was replaced by Imprisonment for Public Protection or IPP.


Offenders who are between 10-17 years old
If convicted of murder, a young offender will be detained at ‘Her Majesty’s Pleasure.’

Offenders under 18 years old who are convicted of a Serious Offence
If the offence carries a maximum penalty of ‘detention for life’ and the offender is ‘dangerous’ will be sentenced to ‘detention for life.’


Offenders aged between 18 to 20 years old
If an offender is aged 18-20 years old on the date of conviction for murder, they will receive ‘custody for life.’ Offenders sentenced for other offences may also get custody for life, but only if they are ‘dangerous’.

Lifers are on licence for the rest of their lives. This means that they are liable to be recalled to prison at any time after release.

Imprisonment for Public Protection
Until the Criminal Justice Act 2003, some prisoners received mandatory Imprisonment for Public Protection or IPP, if they met certain criteria. These were:
i) the offence was a ‘specified offence’ under Schedule 15 of the Criminal Justice Act 2003.

ii) the court considered that there was a real likelihood that further serious offences would be committed and cause a threat to the public.

If these conditions were met, an IPP would be imposed unless the court decided that IPP was not reasonable having regard to all the circumstances.

Nowadays, the court is only allowed to impose IPP if:
i) The seriousness of the offence committed should warrant at least a custodial sentence of four years

ii) The offence must also be serious enough for an IPP to be imposed

iii) The offence must be a specified offence that carries at least ten years imprisonment

iv) There must be a significant risk that further ‘specified offences’

would be committed and cause a risk to the public

v) The offender does not meet the requirements for a discretionary life sentence

How Life Sentences Work
Unless the minimum term is short, e.g. 5 years or under, life sentences work in three parts. These are as follows:

1) Initially, after being allocated to a Cat A or B prison, a lifer will usually stay at this prison for at least 18 months to 3 years. Offence based work will start at this prison. Assessments will be carried out if applicable, such as CALM, SOTP, etc.

2) Move to Cat C prison. There will be more offence-based work, risk reduction, and escorted absences. The offender at this point will be expected to demonstrate self-discipline and self-reliance.

3) Once the Parole Board has recommended it, the lifer will be transferred to open conditions and is likely to spend 2-3 years in this category. Prisoners who are deemed not to have a successful stay in open conditions may be transferred back to closed conditions.

Release and Parole For Prisoners Serving Indeterminate Sentences
The procedure for parole normally begins three years before the minimum term or tariff expiry date, so that those who are recommended for open conditions can spend two or three years in these conditions before being released. If you are on a short tariff, your parole will automatically be reviewed around six months before you are eligible for release. You do not have to apply for parole, unlike determinate sentence prisoners. Once your dossier is ready the parole board will consider whether they are going to release you or whether there should be an oral hearing. If you do not get released, the Secretary of State will direct when your next review is. It cannot be longer than two years later without your permission. The decisions of the parole board are susceptible to judicial review. You should seek legal advice for representation at a parole hearing.

Proving A Reduction In Your Risk
Prisoners serving life or IPP are heavily reliant on proving that they are no longer dangerous in order to demonstrate that they are suitable to be moved to more relaxed conditions or release on licence. This can cause considerable problems for individuals who maintain their innocence, and prisoners who admit guilt but have not been able to find places on suitable courses. If this happens to you, contact a solicitor.


Rights for Convicted Prisoners

Incentives and Earned Privileges (IEP)
There are three levels of IEP: basic, standard and enhanced. Some prisons also have a fourth status ‘super enhanced.’ If you are on the standard level, you can apply for enhanced status every three months. If you don’t apply, your IEP status should be reviewed once a year, unless there is a change in your behaviour beforehand. Once convicted, prisoners are subject to different criteria under the IEP scheme.

If prisoners are deemed to have behaved badly, their IEP can be taken away from them. This is not supposed to be a form of discipline, although it can be hard not to see it that way! Privileges that can be earned in the IEP scheme are:

- better pay

- being able to access your own money

- TV in your cell

- more visits

- being able to wear your own clothes

- longer association

Some prisons also offer enhanced canteen, mail order facilities and access to the gym.

How to get Enhanced Status
The prison will look at the following to decide whether you should get enhanced status:

- good behaviour

- using your time in prison constructively

- your approach to your sentence

- your attitude to people outside prison including the victim of your offence

Unfortunately, prisoners who maintain their innocence and who are therefore ineligible for offence based courses may be seen as not fully engaging with their sentence plan – which means that your status of IEP could suffer as a result. The courts have found this to be lawful in numerous cases. However, if you feel that you have been unfairly put on basic or standard IEP, you can use the complaints procedure and in some circumstances, IEP decisions can be judicially reviewed.

Categorisation
Soon after being sentenced, a prisoner will be categorised as either A, B, C or D depending on their risk. Prisoners who were provisional category A prisoners while on remand have their categories reviewed soon after conviction and sentence, and in the vast majority of cases will remain category A.

Category A prisoners are subjected to the highest security conditions and the possibility of their escape must be made ‘impossible on the grounds of national security.’ There are three sub-categories of Category A: standard risk, high risk and exceptional risk. Their next review must occur two years after this first review, unless a shorter timescale was decided at the first review, or the Governor recommends an earlier review.

Category B prisoners are deemed to be less of an escape risk than Category A prisoners, but escape must still be made very difficult.

Category C prisoners are prisoners who are not yet considered trustworthy enough to be allowed to be in open conditions, but who are not deemed to be an escape risk.

Category D prisoners can be trusted in open conditions.

Prisoners who are in the last 30 months of their sentence have their category reviewed every six months.

The principle is that “Every prisoner must be placed in the lowest category consistent with the needs of security and control. A prisoner must be assigned to the correct security category even if it is clear that it will not be possible to allocate him to a particular establishment for prisoners in that category.”

Categorisation reviews must be carried out lawfully, openly and using the correct procedures. If prisoners feel that they have been treated unfairly in this regard, they should seek legal advice without delay.

Visits
Convicted prisoners are entitled to two visits every four weeks. This may be reduced to one visit per month if the Secretary of State orders it. Legal visits do not count as one of these visits. The Governor has the authority to refuse visits on several grounds, such as security, prevention of crime, and maintenance of good order or discipline. However, it is only in exceptional circumstances that a relative can be refused a visit with you.

If your visitor tries to smuggle contraband into prison, such as drugs, mobile phones, or other prohibited items, this is likely to result in a disciplinary charge for you. Your visitor is also likely to be arrested and may be charged by the police.

Category A prisoner visitors have to be approved by NOMS. You will normally have closed visits before open visits are allowed.

Letters
Convicted prisoners can send one statutory letter each week (paid for by the tax payer) and, in general, as many privilege letters as they want. Privilege letters can be withdrawn as a punishment. Numbers of letters you are allowed to receive can vary and if you are sent too many letters you may be allowed to choose the letters that you keep and those you reject. It is worth telling your loved ones that their letters cannot be excessively long, and the limit is 4 sides of A4 paper. There is nothing in the prison rules to suggest how large or small the font must be though!

There are also ‘special letters’ which are paid for at the public’s expense in certain circumstances, such as:

- being transferred to a new prison or on arrival at a new prison

-straight after you have been convicted if you need to sort out some business issues

-if you need to contact Probation or another agency to do with your forthcoming release

Legal correspondence is governed by rule 39 of the Prison Rules, and should not be read by prison staff. However, it is a common complaint by prisoners that these privileged letters have been read by prison staff. It is not lawful for the prison to read your legal mail, unless the prison has reason to believe that the contents endanger prison security, are of a criminal nature, include an illegal enclosure or put others’ safety at risk. Your legal letters, and confidential access correspondence (e.g. a letter to your MP), are private and should not be routinely read. Other letters (i.e. not confidential or legal ones) may be read, for example, if you are held in a high security establishment, are Cat A or on a Cat A unit, on the escape list, or have been charged with sending obscene correspondence (remand or convicted.) In ‘exceptional circumstances’ the prison may routinely read your letters if these don’t apply.


Telephone Calls From Prison
Prisoners are given a pincode to access credit for telephone calls. The maximum credit you can hold on your account is £50, or more for foreign nationals. Most prisoners will only be able to call pre-arranged numbers that they have registered with the prison (up to 20 personal numbers and 15 legal numbers.) Some numbers can be barred. The Governor can control the length of calls, time between calls and the number of calls that can be made each day.

Jobs in Prison
Convicted prisoners are required to work for a maximum of ten hours each day. A working week is ten morning or afternoon sessions each week or five nights. If you refuse to show up for work, or do not do the work properly, you can be disciplined. There is a minimum rate of pay of £4 per week, which should be paid to all prisoners who are working, in induction, education, offender based programmes and training. Payment for some kinds of work will be paid based on the quality and quantity of what you produce, but you should still be allowed the opportunity to make up to the minimum of £4 per week. Unemployed prisoners, who either cannot work or want to work but cannot find suitable jobs, are paid £2.50 per week. Retired prisoners, and those who are long-term sick are paid £3.25 per week. Prisons also have local pay schemes, so rates may differ.

Your Health
Within 24 hours of entry into custody prisoners will be assessed for health issues. If you have no immediate health concerns (physical or psychological) you should be allowed a general health assessment within your first week of being in custody. Remember, you have the right to see a nurse, doctor or other healthcare professional. If you need treatment and are refused it, you may have a claim against the prison.


Your Risk Assessment
Prisoners who are serving twelve months or more will have an OASys assessment within eight weeks of their sentence. This is an extremely important document that impacts on many wide-ranging decisions relating to a prisoner’s sentence. It will be in the form of an interview and questionnaire and once completed will trigger referrals to offence based courses. If the Parole Board has to determine whether or not you are released, you will need to demonstrate that you have reduced your risk. Prisoners who are serving short life tariffs or IPPs are especially prone to not being able to access the courses they need to complete. If you disagree with your sentence plan, or if you have been referred onto a course that you can’t access, contact a solicitor for advice.



Prison Discipline
Prison discipline falls into two categories: formal discipline, and informal discipline. Informal discipline is conducted by the prison itself. Offenders may be segregated, put in special cells, subject to closed supervision, recategorised or transferred to another prison. Again, if you find yourself in this situation, seek legal advice.

Formal discipline is conducted by external adjudicators. If charged, you will be given F1127A, known as being ‘put on report.’ If what is alleged is serious enough, the hearing may be adjourned while the offence is referred to the police. You will appear before the governor in the first instance and this hearing has to take place within two days of you receiving the charge. If the governor considers that the offence may result in you getting extra days added on to your sentence, they cannot conduct the hearing themselves and must get an independent adjudicator to hear the adjudication instead. An independent adjudicator has the power to order you to serve additional days as a punishment and if this happens you are entitled to be represented at the hearing. However, prisoners serving life sentences or IPP cannot be given additional days.

At the beginning of the hearing the governor will ask you if you want to seek legal advice. If you have not had time to seek legal advice before this hearing you should say so at this point. The governor may then put off the hearing to allow you to contact a solicitor. Ideally, you should contact a solicitor as soon as you are put ‘on report.’

What happens if you are caught drink driving?

Christmas is not far off. Dark nights and icy weather are a bad mix. You may even be tempted to go out straight after work, stay out late and drive to work the next day. Lots of people fail breathalyser tests on their way to work on a morning. Not drinking alcohol before driving and not driving to work after being over the limit the night before is the safest course of action, both for you and other road users.




So what happens if you are stopped by the police?



We are often asked ” Can the Police stop you randomly, for no good reason?”

The answer is “yes”.



“Can they then insist that I take a breath test?”

The answer is - Only if the police officer has reasonable cause to suspect that you have committed, or are currently committing a moving traffic offence; or, having stopped you, the officer has cause to suspect that you have consumed alcohol or the officer believes that you were involved in an accident.

A Police Officer can ask all occupants of a vehicle to give a breath test if he suspects that a passenger may have actually been the driver.

You cannot be forced to take the road-side test – but, unless you have a very good reason, for example you have a relevant medical condition such as asthma or emphysema, then you can only make matters worse for yourself by refusing. In any event, at the Police Station, (for it is almost inevitable that you would be arrested if you refuse to give a road-side breath test) you can be asked to give a sample of blood or urine. Failing to give a sample of breath or an alternative sample is likely to result in a charge and an appearance at Court.



So, the best advice is to go through the process peaceably and offer full co-operation and then seek legal advice.



Emmersons solicitors Michael Robinson and Duncan Emmerson collectively have more than 40 years’ of experience in this area of law. They have vast experience in representing business owners and employees where driving is an essential part of their working lives eg. Engineers who need to go out on site or key sales representatives.



It’s worth pointing out that there are no loopholes as such, but there are ways to apply and interpret the law which can help minimise ban periods and there are defences that can be put forward.

For example, shortness of distance driven; if you drove to a pub, parked the car on the roadside, had too much to drink then decided to move the car off the road into a nearby car park but got caught exceeding the legal drink drive limit, then it is possible that shortness of distance could be used as a defence.

Men and Divorce

If you are male and separating or seeking a divorce or being divorced or heading towards a dissolution then look first at our Facebook page.
If you need legal advice then contact us on 01915676667 (Sunderland area) or on 01912846989 (Newcastle upon Tyne area).
We offer legal aid through our Sunderland office.
We do not offer free advice sessions.
There is either a fixed fee of £100 or you are entitled to Legal Help (ie legal aid) and so the advice is free to you.
All legal aid advice for family law cases may involve the statutory charge.
So for advice and representation contact Emmersons Solicitors.

IPP Campaign

You can join in our IPP Campaign and you can comment upon what we say on our Facebook page.

What the Senior Partner thinks

Solicitor Jacqueline Emmerson got off to a flying start in her new office at Gosforth. She has over twenty years of experience dealing with Family law, Wills and Probate and Lasting Powers of Attorney. Jacqueline used to undertake a lot of work under the Legal Aid Scheme however; she has now set up a private fee paying department at the Gosforth branch of Emmersons Solicitors.

“It has become very frustrating dealing with legal aid. I don’t feel that clients using that scheme can be dealt with as thoroughly or as fast as they can if they are privately paying. The Legal Aid process is slow and cumbersome. Legal Aid clients are often waiting weeks for decisions to be made about their funding.

In our Gosforth office we do not offer legal aid for family law. I therefore feel that I now have time to spend with clients discussing their cases instead of their funding issues.   

 I have always enjoyed dealing with complicated matrimonial matters. Often involving businesses or investment properties. As a business owner myself I have an understanding of business accounts and can often spot issues that some other solicitors would miss. Recently I spotted an anomaly in a client’s accounts. When she pointed this out to her accountant it transpired that her accounts had been badly drafted and needed to be redone. This has lead to her receiving a tax refund.

I also encourage clients to carry out as much work on their case as they are comfortable with.  Some people want me to obtain all of their financial information for them because they are too busy to do this themselves. Others prepare a lot of their own paperwork in order to keep their costs to a minimum. I go to a lot of trouble to explain to clients the steps they can take to minimize their costs. I am always shocked when I hear of some of the bigger firms regularly charging clients over £20,000 for what are in effect fairly routine cases for someone with my level of experience.

I also offer value added advice which comes from the knowledge that I have built up over the years. As I deal with wills and probate I am able to offer long term estate planning. This becomes ever more complicated as people marry for the second time especially when they have children from their first relationship.  Having dealt with a number of contested probate estates over the years I have an appreciation of which family members a client should provide for in order to avoid a costly challenge to their estate. I also keep permanent notes in case anyone does try to challenge a will. Often the provision of detailed notes to a disappointed beneficiary is enough to prevent a legal challenge in the first place”. 

Edith has been so kind to me….

So said Betty when she came to see me about making a will. She then told me that she would like to leave Edith £10,000. The will would therefore say “£10,000 to Edith and the rest of my estate to be shared equally between my two daughters”

But there is a problem with this. The £10,000 is a specific legacy and so Edith would receive her share of Betty’s estate before Betty’s daughters received theirs. If Betty has an estate worth £150,000 at the time that she makes her will then the gift to Edith may seem perfectly reasonable.

 However, what if Betty had been on a series of world cruises and had gone wild at the local casino before she died? Her estate may then be worth only £15,000. Edith would receive her £10,000 and Betty’s daughters only £2,500 each.

Betty was shocked when I pointed this out to her, most notably because she suffers from seasickness and has never gambled in her life! I therefore suggested that she should leave a percentage of her estate to Edith eg. 2% or 5%. That way she would be saying thank you for all of the kindness shown to her by Edith whilst at the same time benefiting her daughters in the way that she intended.

The other item that people often wish to leave by way of inheritance is their home. But which home? When you make your will you may live in a large home which is worth a lot of money. By the time you die you may have downsized your home and put most of your money into other assets. Or you may have moved into much bigger and more expensive premises. Would you still want the same person to benefit from what is now a greater part of your estate?

As life changes it is important to revisit your will from time to time. Predicting your future is like looking into a crystal ball. It is better to consider a will as a temporary measure until the next major change in your life. 

After all you never know how much money you will spend when you decide to trip The Light Fandango!

Jacqueline Emmerson

Conveyancing, It’s only signing some forms isn’t it?

As a Conveyancing solicitor I am involved on a daily basis with clients, lenders and Estate Agents buying and selling properties. However, what is quite clear to me is that many people do not understand the Conveyancing process and, in particular, what they are paying me for.

There appears to be a common misconception that it is the solicitor who causes the delays and, in some cases, purposely slows down a transaction in order to claim more fees from the client.

Take the recent case of Paul and Sandra. Having looked for a long period of time for a family home they were very excited when their offer was accepted on a property. We advised them that they should consider having a survey carried out. Not surprisingly it highlighted numerous problems with the property. Sandra then obtained quotes to have repairs carried out. They amounted to £20,000! This meant that a lot of work would need to be carried out. Sandra therefore reduced her offer price by this amount. Then an angry estate agent started to ring Sandra, what right did she have to reduce her offer, he was not having it! He was going to make sure they couldn’t buy the house at the reduced price. Sandra was very distressed when we heard from her. We simply contacted the seller’s solicitor, we pointed out that if they tried to sell at the higher price to someone else then there would be further delay and  no doubt the same problems would be uncovered by them. They came straight back to us and accepted the lower offer. 

My own view is that for a client to be satisfied with their conveyancer, they should know more about the Conveyancing process. In many cases I have spoken to clients who believe that all the solicitor has to do is produce the documents for signature and transfer the money.  This is simply not the case.

When giving Conveyancing quotes, I am often asked “How long will it take?” The million dollar question.  My stock answer is that a transaction should take between four to six weeks to complete and this is true in many cases. However, it is difficult to know exactly how long a transaction will take. There are many issues to consider such as: The mortgage offer - is it being processed by the lender? Are there any special conditions on the mortgage offer?  Is the property registered with the Land Registry? Are there restrictive covenants? Have there been breaches of the covenants? Have there been alterations to the property? Is the property Leasehold? And there are also the clients themselves - Are they serious about proceeding? Are they good at returning documents? Are they contactable? Have they gone on holiday without telling us?

These are just a few of the issues which may arise during a transaction. It is impossible to know at the outset which, if any, will arise.  Remember, if you are involved in a chain and any difficulties arise for others in that chain then everyone has to wait until those problems are sorted out. Therefore, the initial estimate of four to six weeks needs to be qualified and I make a point of explaining this to all my clients at the outset.

It is your solicitor who will have the legal knowledge as to how quickly matters can proceed. Estate agents are not legally trained and sometimes do not understand how thorough we have to be, not just to protect our clients’ best interests but also those of their lender. If a purchase or re mortgage is being funded by way of a mortgage then we will be acting for the lender at the same time, not just our client.

 However, you should remember that as a client, you are the customer. Do not be afraid to ask your conveyancer for more information because the more you know, the better placed you will be to assist your conveyancer and agree a swift completion date.

John Coulter

IPP Campaign on Facebook

Have a look at our Facebook site and click on the IPP Campaign page. We have had articles in Inside Time and we have written to all MPs and relevant Ministers about this sentence. We are not the only people who find the sentence abhorrent. There are some, however, who think that IPP is necessary.

Our view is that IPP was a knee jerk reaction to a perceived problem that has created more problems at great expense.

Take some time to read about IPP.

On the face of it IPP makes sense. Lock up the dangerous and only let them out when they are not dangerous. The truth is somewhat different.

Lord Young's review of health and safety, compensation culture, the Universe and the origins of man!!

Lord Young is to release his “report” into health and safety law after the Conservative Party Conference. Already it has been trumpeted as a report into health and safety regulation and the compensation culture which causes all sorts of policy stopping all sorts of activity such as teachers having to complete  a risk assessment in advance of taking school children on a trip.

Lord Young(1) was industry Minister in Lady Thatcher’s Government. That Government acquiesced to insurance companies demands that legal aid be removed from personal injury claims. A system of Conditional Fees was introduced (known as “No win-No fee”) along with a freeing up of the market to allow claims management companies to enter the market. There was disquiet amongst Solicitors.

Since then the insurance companies have continued to complain. They criticised claims management companies and the operation of conditional fee agreements. Recently Lord Justice Jackson completed his review of Civil Litigation Costs(2) and made recommendations

Regulation of Claims Management Companies –as opposed to Solicitors, who are Regulated by the Solicitors Regulation Authority- has resulted in the closure of many companies who would not or could not comply with the Ministry of Justice’s Regulation system.

The need for claims management regulation(3)

2.1 Over the last ten or so years a small industry has grown up of non-solicitor businesses that help people obtain compensation. This has been influenced by government policy initiatives – the introduction of conditional fee agreements for personal injury cases and the requirement on insurance companies to respond in a particular way to complaints about the mis-selling of endowment policies.

2.2 Whilst solicitors remain the principal providers of claims management services, the traditional culture of the legal profession, combined with the professional regulation to which solicitors are subject, allowed new entrants into the market who were subject to no regulation at all. Standards have varied from very good to very poor, but with no mechanism for excesses at the poor end of the scale to be addressed.

The Compensation Act 2006

2.3 The Compensation Act 2006 became law on 25 July 2006. The Act and subsequent secondary legislation provide for the following activities to be subject to regulation -

for, or otherwise seeking out (for example, by canvassing or direct marketing), persons who may have a cause of action;

• advising persons on the merits or handling of causes of action;

• making representations on behalf of claimants;

• referring details of potential claims or potential claimants to other persons, including persons having the right to conduct litigation; and

• investigating, or commissioning the investigation of, the circumstances of, the merits of, or the foundations for, potential claims, with a view to the use of the results in pursuing the claim.

2.4 Claims in respect of the following are covered –

• personal injuries;

• criminal injuries compensation;

• Industrial Injuries Disablement Benefit;

• employment;

• housing disrepair; and

• financial products and services.

2.5 A number of businesses are exempt from the need to be authorised under the Act –

• lawyers regulated in respect of claims management services by their respective regulators;

• independent trade unions;

• insurance companies, insurance brokers and IFAs providing a claims management service that is regulated under the Financial Services and Markets Act 2000;

• charities and advice agencies that meet the detailed exemption criteria set out in the regulations; and

• certain very small scale introducers (‘exempt introducers’) although they need to comply with the rules on advertising, marketing and soliciting business.

The regulatory structure

2.6 The time period from drafting the legislation to Royal Assent and then implementation was very short. At the time the legislation was drafted no decision had been taken as to the regulatory structure. The legislation accordingly allowed any option. The Secretary of State could establish a new regulatory body, designate an existing regulatory body to be the regulator or be the regulator himself. The latter direct regulation option was selected and fully implemented by April 2007.

2.7 An established civil servant supported by a small team in the Ministry of Justice takes decisions on behalf of the Secretary of State. A Monitoring and Compliance Unit is provided under contract by Staffordshire County Council. A non-statutory Regulatory Consultative Group, comprising representatives of relevant major stakeholders including claims management businesses, other regulators, trade associations and consumer organisations, acts as a sounding board for the Regulator and as a forum for discussion.

The objectives of regulation

2.8 The objectives of regulation were set out in the Regulatory Impact Assessment for the Compensation Bill –

“This proposal aims to provide better safeguards for consumers of claims management services. It is designed to encourage the provision of quality services, to enhance consumer protection and to provide consumers with a clear route to redress. In particular, the proposal aims to improve the effectiveness and efficiency of the system for those who have a genuine claim to compensation, and to tackle practices that have helped to spread the misperceptions and false expectations of compensation claims amongst consumers. This will help to build consumer confidence and promote effective competition within the sector, whilst ensuring that the sector will be able to contribute effectively to the widening of access to justice.”

There is a difference between Claims Management Companies (CMC’s) and Solicitors even though the media and politicians talk of personal injury “lawyers” when they should be talking of two distinct though related groups. There are plenty of Solicitors who undertake personal injury work who do not advertise, who do not pay referral fees to companies and who operate entirely within the SRA’s Code of Conduct. Problems arise where Solicitors pay referral fees or become members of a CMC’s panel of Solicitors. There are ethical issues that must be addressed which are ignored. For instance the Legal Services Board recently indicated that there would not be a ban on referral fees.(4)

In 2004 the Better Regulation Task Force(5) published a report(6) confirming that compensation culture is a myth. What has changed since then?

Lord Young’s use of the term “Compensation Culture” is a political act. His report is based upon a political belief that there is too much regulation, that part of the problem are the “lawyers” (what about the CMCs) who help people claim compensation because this makes all sorts of businesses, organisations and institutions NOT do something they would otherwise wish to do. What is the evidence for this?

Journalists-and especially the BBC-need to be more cynical. The review of health and safety regulation wrapped up in a compensation culture wrapper hides a desire of the Conservatives to help businesses and others save money by not taking proper notice of safety issues.

It is true that there have been excesses of health and safety madness reported in the media. How many of those stories are true? How many people didn’t clear snow away from in front of their house or shop in case they were sued? Has anyone admitted to that? Maybe they didn’t do it because they never have and they expect the Council to do it.

Schools closed last winter not because of a fear children might fall on ice or snow and sue but in fact because teachers couldn’t get into school because roads were closed.

In relation to school trips, which organisation pushes the idea of there being too much red tape because of “compensation culture” in case teachers get sued? The Local Government Association of course http://www.lga.gov.uk/lga/core/page.do?pageId=45106 . Local Authorities create (in that they create policy to enforce health and safety regulation) and enforce the health and safety rules that govern what teachers, shop owners and others can and cannot do.

The media love the health and safety excessive regulation stories and thereby add to the fear of a compensation culture. If compensation culture does not exist then why report on it?

Lord Young and the Conservative Party is using the media’s love of health and safety madness and the prejudice against “lawyers” to obscure the truth of its intent.

(4) http://www.legalservicesboard.org.uk/news_publications/press_releases/2010/pdf/20100929_referral_fees_consultation_final.pdf

(5) http://archive.cabinetoffice.gov.uk/brc/news/2004/040527_compoculture.html

 (6)http://archive.cabinetoffice.gov.uk/brc/upload/assets/www.brc.gov.uk/betterroutestoredress.doc