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Efbe
Original Poster
4,862 posts
35 months
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very quick bit of advice needed please.
I am going to be going into court today with a colleague who is the defendant in a magistrates court.
I will be helping out as the mckenzie friend. Is my role limitted to just helping and giving advice, or am I able to speak on his behalf.
The guy struggles under pressure, and isn't exactly eloquent at the best of times, Though his case is a certain win, I highly doubt (so does he!) he will be able to convey any of the salient points of his defence whatsoever.
thanks.
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JustinP1
10,274 posts
99 months
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I'm not a lawyer - but I have researched this before. I am almost certain that you can be there, sit next to him, have private conversations with him, but you can't speak on his behalf.
The best thing to do is speak to a clerk of the court before the hearing and get them to explain specifically what is allowed.
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Efbe
Original Poster
4,862 posts
35 months
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Thanks, That's what I had thought, had just been a little confused with a website that mentions you can:
"Request grant of a right of audience under s27 of the Courts and Legal Services Act 1990"
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10 Pence Short
27,578 posts
86 months
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I think that section was repealed by the Legal Services Act 2007. This act introduced 'reserved legal activities', of which rights of audience is one, where only those properly qualified and regulated can carry them out.
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davepoth
19,878 posts
68 months
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Efbe said: Thanks, That's what I had thought, had just been a little confused with a website that mentions you can:
"Request grant of a right of audience under s27 of the Courts and Legal Services Act 1990" Firstly, that section of the Courts and Legal Services Act 1990 was repealed in 2007. If you aren't able or willing to look something like that up in the correct place, then you need to seriously consider your position as McKenzie friend - the CPS will rip you to shreds, no matter how good you think the case is. -edit- Cross post.
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Efbe
Original Poster
4,862 posts
35 months
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thanks for that. As I said I wasn't sure about that section, it being repealed is probably the reason I hadn't heard of it before. unfortunately the guy has no options, this is the first hearing, he was hoping to get it thrown out at this point as their main witness's statement is very obviously incorrect in several places. I'm not meaning a little wrong, more bending the laws of physics here  I have been to court a few times before, though never as defence. I had advised my colleague to get a solicitor, however he has no money, and a very poor credit rating, so can't get a loan.
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JustinP1
10,274 posts
99 months
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Efbe said: thanks for that. As I said I wasn't sure about that section, it being repealed is probably the reason I hadn't heard of it before. unfortunately the guy has no options, this is the first hearing, he was hoping to get it thrown out at this point as their main witness's statement is very obviously incorrect in several places. I'm not meaning a little wrong, more bending the laws of physics here I have been to court a few times before, though never as defence. I had advised my colleague to get a solicitor, however he has no money, and a very poor credit rating, so can't get a loan. In which case then isn't this hearing simply to state his plea, and to discuss further directions? If there is written evidence, then this hearing won't be to discuss it, nor would I believe the court would accept discussion on it, let alone throw out the case.
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Efbe
Original Poster
4,862 posts
35 months
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JustinP1 said: In which case then isn't this hearing simply to state his plea, and to discuss further directions?
If there is written evidence, then this hearing won't be to discuss it, nor would I believe the court would accept discussion on it, let alone throw out the case. yes it is. and no I don't expect he will be able to get it thrown out, but it's worth a try. I honestly think if the CPS realise what en error they have made, they will back out. Ok maybe I don't, but maybe the magistrates will.
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JustinP1
10,274 posts
99 months
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Efbe said: JustinP1 said: In which case then isn't this hearing simply to state his plea, and to discuss further directions?
If there is written evidence, then this hearing won't be to discuss it, nor would I believe the court would accept discussion on it, let alone throw out the case. yes it is. and no I don't expect he will be able to get it thrown out, but it's worth a try. I honestly think if the CPS realise what en error they have made, they will back out. Ok maybe I don't, but maybe the magistrates will. I'd say that was unlikely. Also from experience of defending myself where I knew the facts could be proven otherwise, the case is unlikely to be dropped by the CPS - unless the error is totally fundamental. The downside of trying is that you are showing your hand. In reality, the CPS brief will get this case the morning of the actual hearing and will go per the evidence. What you don't want to do is outline your plan of action, as of course this simply brings attention to errors to be satisfactorily covered by the witness(es). My advice would be to keep shtum, and then focus your plan of attack around the specific areas of error to introduce reasonable doubt.
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davepoth
19,878 posts
68 months
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JustinP1 said: I'd say that was unlikely.
Also from experience of defending myself where I knew the facts could be proven otherwise, the case is unlikely to be dropped by the CPS - unless the error is totally fundamental.
The downside of trying is that you are showing your hand. In reality, the CPS brief will get this case the morning of the actual hearing and will go per the evidence. What you don't want to do is outline your plan of action, as of course this simply brings attention to errors to be satisfactorily covered by the witness(es).
My advice would be to keep shtum, and then focus your plan of attack around the specific areas of error to introduce reasonable doubt. All of that. However, 99% of the work with magistrates' court cases does tend to be done by letter before the trial - have you made any approaches to the CPS?
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Red Devil
4,239 posts
77 months
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JustinP1 said: I'm not a lawyer - but I have researched this before. I am almost certain that you can be there, sit next to him, have private conversations with him, but you can't speak on his behalf. Nor am I, but that looks to me a good summation. JustinP1 said: The best thing to do is speak to a clerk of the court before the hearing and get them to explain specifically what is allowed. Worth a punt. This may help as well. http://www.familylaw.co.uk/system/uploads/attachme...10 Pence Short said: I think that section was repealed by the Legal Services Act 2007. This act introduced 'reserved legal activities', of which rights of audience is one, where only those properly qualified and regulated can carry them out. Except that the above guidance post dates the 2007 Act. It clearly states that a grant of audience MAY be granted to a lay person, including an MF. Also, my understanding of the Act is an MF would be an exempt person under Schedule 3. I can't find anything which abrogates the judgement of the Court of Appeal in R v Leicester City Justices 1970 3 W.L.R. 368. Unlike the Bench, the Justices' Clerk is legally trained, He/she ought to be aware of that case as it his/her job to provide legal advice to the magistrates - http://www.judiciary.gov.uk/publications-and-repor...
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10 Pence Short
27,578 posts
86 months
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Your first link relates to Civil issues only, though.
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10 Pence Short
27,578 posts
86 months
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Efbe
Original Poster
4,862 posts
35 months
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Thanks for the advice.
Luckily I ignored some of it;) and a notice of discontinuance has been issued to see if the police can come up with any more evidence.
job jobbed.
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JustinP1
10,274 posts
99 months
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Efbe said: Thanks for the advice.
Luckily I ignored some of it;) and a notice of discontinuance has been issued to see if the police can come up with any more evidence.
job jobbed. Nice work. Any more details? My presumption was that it was a police witness statement that was presented. I guess that is not the case?
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Efbe
Original Poster
4,862 posts
35 months
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JustinP1 said: Efbe said: Thanks for the advice.
Luckily I ignored some of it;) and a notice of discontinuance has been issued to see if the police can come up with any more evidence.
job jobbed. Nice work. Any more details? My presumption was that it was a police witness statement that was presented. I guess that is not the case? duty solicitor was as much use as a chocolate teapot, didn't want to help at all. About 15 mins before the case was due had a word with the court clerk, asked a few questions and showed them very briefly the evidence. They seemed a bit concerned, so went off to get the prosecution. They came in, gave her the summary of our case, after a quick glance over she advised they would only be using the PCs statement from the scene of the collision, which had nothing whatsoever about driving without due care and attention. She advised they would file a notice of discontinuance and see if there is any more evidence to come, which we know there isn't (barring some photochop skills!)
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kaf
323 posts
16 months
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Good work,  having read your earlier thread on the collision, there was clearly something wrong as there were two totally different sets of facts presented. You friend may owe you more than one beer. 
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Wings
3,973 posts
84 months
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10 Pence Short said: ^^^Agree, Mckenzie Friend is always at the discretion of the Court.
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Efbe
Original Poster
4,862 posts
35 months
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kaf said: Good work, having read your earlier thread on the collision, there was clearly something wrong as there were two totally different sets of facts presented. You friend may owe you more than one beer. cheers. managed to also show that his car could not have performed a u-turn in the road without making it a three point turn, with the use of manufacturer specs and a tape measure. Basically was able to show that almost every sentence of the main witnesses statement was a lie!
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