Leaving an address or area that a defendant has been bailed to without seeking the permission of the police or Judge, and failing to return within a reasonable time.
Absconding may be used as a general term, but is also a specific offence under the Bail Act 1976, s 6. A person who has been released on bail in criminal proceedings fails without reasonable cause to surrender to custody is held to have absconded. It is for that person to show the reasonable cause, if any, for not surrendering to his bail.
Proceedings for offences of absconding and fraudulent dealings with propertyThe Insolvency Act 1986 (IA 1986) creates specific offences relating to property and an individual adjudged bankrupt.They are:•absconding with property•disposing of property obtained on credit, not paid for, and•acquiring property where money is owed by a bankruptIn each case the onus is on the prosecution to prove that the defendant was bankrupt at the relevant time.All of the offences are triable in either the magistrates' court or the Crown Court.Proceedings cannot be instituted after a bankruptcy order has been annulled and the bankrupt has been restored to his pre-bankruptcy status. Prior to annulment there is nothing to prevent the institution of proceedings.The IA 1986 expressly provides that a bankrupt is not guilty of an offence in respect of any thing done after the discharge of the bankruptcy order.Proceedings for each offence can only be instituted by the Secretary of State or by, or with the consent of, the Director of Public Prosecutions.Elements of the offence of absconding with propertyA bankrupt person will commit an offence if they:•leave, attempt to leave or make preparations to leave England and Wales•with any property •that they are required to deliver to the official receiver or trustee, or•if they leave or make preparations to leave England and Wales
Bench warrantsThe Bail Act 1976 (BA 1976) provides that if a defendant fails to appear at court to answer bail, the court may issue a warrant for their arrest. This is sometimes called a bench warrant.A defendant who is granted bail by the court must comply with whatever procedure is prescribed by the court for answering their bail. For example, a court may operate a system that requires a defendant to report to the court usher on arrival.If the defendant fails to comply with that procedure, a warrant may be issued with or without bail:•if issued without bail, the defendant will be kept in police custody having been arrested until the next available court date, or•if issued with bail, the defendant will be released on bail having been arrested with a duty to appear at court on the date and time specified in warrant—the court will only issue this type of warrant where there appears to be a good reason for the defendant’s absence, eg due to error Instead of issuing a warrant, the court may decide to adjourn proceedings. The court will do this if it is satisfied that there is a good explanation for the defendant’s absence. The defendant will not be arrested but will receive in the post a bail notice
Failing to surrender, absconding and breach of bail conditions Bench warrants The Bail Act 1976 (BA 1976) provides that if a defendant fails to appear at court to answer bail, the court may issue a warrant for their arrest. This is sometimes called a bench warrant. A defendant who is granted bail by the court must comply with whatever procedure is prescribed by the court for answering their bail. For example, a court may operate a system that requires a defendant to report to the court usher on arrival. If the defendant fails to comply with that procedure, a warrant may be issued with or without bail: • if issued without bail, the defendant will be kept in police custody having been arrested until the next available court date, or • if issued with bail, the defendant will be released on bail having been arrested with a duty to appear at court on the date and time specified in warrant—the court will only issue this type of warrant where there appears to be a good reason for the defendant’s absence, eg due to error Instead of issuing a warrant, the court may decide to adjourn proceedings. The court will do this if it is satisfied that there is a good explanation for the defendant’s absence. The defendant will not be arrested but will receive in the
What happens when a client receives a custodial sentence? What do you say to a client facing a custodial sentence? When clients are facing time in prison, they can feel overwhelmed or daunted. This Practice Note is designed to be a speaking aid to assist practitioners to advise a client as to a possible custodial sentence. It points the practitioner to relevant detailed guidance and enables a practitioner to discuss with their client what will happen if they receive a custodial term. Fundamental principles Detailed guidance on the general principles applicable to all sentencing exercises can be found in the following Practice Notes: • Sentences and the power to vary a sentence, and • Pre-sentence reports • Calculating time spent on remand or on tagged bail • Victim personal statements in criminal proceedings • Sentencing criminal offences—sentencing guidelines and resources • Credit for guilty plea • Mitigation in the sentencing of criminal offences What follows is a summary of the fundamental principles applicable to custodial sentences. Custody threshold A custodial sentence must not be imposed unless the offence: ‘was so serious that neither a fine alone nor a community sentence can be justified for the offence’ This test is referred to as the custody threshold and is found at SA 2020, s 230. For further information, see Practice Note: Sentences and
Coronavirus (COVID-19)—powers to detain potentially infectious people [Archived] ARCHIVED: This Practice Note has been archived and is not maintained. This follows the entry into force on 10 December 2021 of the Coronavirus Act 2020 (Early Expiry) (No. 2) Regulations 2021, which provides for the early expiry of the powers in CA 2020, s 51 and Sch 21, Pt 2 to detain potentially infectious people. See: LNB News 29/10/2021 4. The Coronavirus Act 2020 (CA 2020), the emergency legislation passed with the aim to control the spread of coronavirus (COVID-19), received Royal Assent on 25 March 2020. It created powers to detain ‘potentially infectious’ people during the pandemic. According to the first two-monthly report on the use of powers created by CA 2020, the powers to detain potentially infectious people was used ten times during the first two months of being in force. The powers in context Are these powers really ‘unprecedented’? The powers to close businesses and to detain people to prevent the spread of coronavirus (COVID-19) have been called unprecedented, but in fact that is not quite true. Since long before the current crisis there have been statutory powers to protect public health, including for ministers to make various regulations, and for magistrates’ courts to make various orders on the application of local authorities, including
Court of Protection case tracker The Public Guardian v RI and others  EWCOP 22 Court of Protection decides man with learning disability and chronic schizophrenia lacked capacity to execute LPA and orders registration of LPA to be cancelled. This case concerned RD, a man aged 60, with a learning disability and a diagnosis of chronic schizophrenia, who is currently residing in a care home. RD appointed his brothers, RI and RO, and his mother, V, to be his attorneys via a lasting power of attorney (LPA) in 2009. An application was made by the Public Guardian to consider that RD had not had capacity to create the LPA in 2009 as is required by section 9(2)(c) of the Mental Capacity Act 2005 (MCA 2005) and that, as such, a requirement for the creation of the LPA was not met (MCA 2005, s 22(2)(a).) RI, RO and D (RI’s wife) contend that RD did have capacity at that time, that the legal executive, JH, clearly assessed RD's capacity at the relevant time, and that RD has deteriorated significantly since 2009 due to the dual impact of having to move out of the family home and the death of his mother. It is not disputed that RD does not now have capacity either to revoke the LPA or to execute a new LPA.
Credit for guilty plea This Practice Note explains the circumstances in which a convicted offender may receive a reduced sentence for having pleaded guilty in accordance with data-ln-csis="274768" data-ln-lnis="616J-5XB3-CGXG-02NV-00000-00">section 73 of the Sentencing Act 2020 (SA 2020), also referred to as the Sentencing Code, and the Sentencing Council’s overarching guideline on the reduction in sentence for a guilty plea. Basis for giving credit for an early guilty plea The court has the power to reduce the sentence it had determined in order to reflect the fact that the offender has pleaded guilty. How much credit is given for the guilty plea depends upon the stage at which the guilty plea is indicated by the defendant. The maximum level of reduction in sentence for a guilty plea in criminal proceedings is one-third. The purpose of giving credit to those who plead guilty is to encourage those who are guilty to admit their guilt, as early as possible, so as to save the time and expense of a trial (on both sides). It is not intended to pressurise those who are not guilty to plead guilty and every defendant is entitled to put the prosecution to proof as to their case and it is for the prosecution to prove its case to the criminal standard (see Practice Note: Burden and standard of proof). However, every
Securities, sureties and other conditions of bail Conditions of bail A defendant granted bail by the court may be required to comply with conditions of bail both before and after bail is granted. The Bail Act 1976 (BA 1976) refers to some conditions that may be imposed but does not contain an exhaustive list. See further: Magistrates’ court bail application—checklist. No condition may be imposed unless the court considers it necessary to ensure the defendant: • attends court • does not commit offences on bail • does not interfere with witnesses or obstruct the course of justice • cooperates with the preparation of pre-sentence reports • attends appointments with their legal representatives Common conditions imposed are • before release: ◦ surrender of passport or other travel documents to the police ◦ provision of a security or sureties • after release: ◦ residence at an address specified by the court A security A security is a sum of money or other valuables that is deposited with the court to ensure a defendant surrenders to custody. The security may be provided by the defendant personally or from a third party. A security may only be deposited if the court considers that it is necessary to secure the defendant’s attendance at court. If the defendant fails to surrender to custody it may be forfeited by the court either wholly or in part, unless there appears to be a
Basic principles—the delivery-up of information and property to the insolvency office-holder The Insolvency Act 1986 (IA 1986) and Insolvency (England and Wales) Rules 2016, SI 2016/1024 (IR 2016) give insolvency office-holders in certain situations the power to obtain property (which includes cash, books and records and documents) of the insolvent company or bankrupt. The IA 1986 imposes a duty on certain individuals and entities to co-operate with the office-holder and imposes sanctions in the event that they fail to do so. In addition, certain individuals or entities are required to deliver up accounts and explanations (either orally, in person, or by way of a sworn statement) detailing their dealings with the affairs and property of the insolvent individual or company. The purpose of these powers is to allow the office-holder to reconstitute the knowledge of the insolvent company or individual, which may allow previously unknown assets to be realised for the benefit of creditors. This Practice Note sets out the basic principles of delivering up information and property to the office-holder (eg the administrator, liquidator or trustee in bankruptcy). Although the principles relating to corporate insolvencies are similar to those in bankruptcy, this Practice
Coronavirus (COVID-19)—key offences created by the Coronavirus Act 2020 This Practice Note summarises the key offences created by data-ln-csis="292140 274768" data-ln-lnis="5YHD-T7V3-GXFD-83SX-00000-00 5YHM-P5X3-CGXG-03TH-00000-00">Coronavirus Act 2020 (CA 2020). It covers offences which apply principally in England and Wales as well as Scotland. For guidance on the corporate offences created to address the coronavirus (COVID-19) pandemic under health protection regulations, see Practice Note: Coronavirus (COVID-19)—key corporate offences created under emergency health protection regulations. Offences created under the Coronavirus Act 2020 (CA 2020)—England and Wales Legislation Offences created Penalties Further resources CA 2020, s 50, Sch 20 (Power to Suspend Port Operations), para 6 —failing to comply with a port direction or supplementary direction without reasonable excuse (related to the suspension of port operations)(summary only offence) an unlimited fine and / or 51 weeks’ imprisonment (England and Wales)level 5 fine and / or 12 months’ imprisonment (Scotland)level 5 fine and / or 6 months’ imprisonment (Northern Ireland) CA 2020, s 51, Sch 21 Pt 2 (Powers Relating to Potentially Infectious Persons), para 23 (England) These provisions, as they apply to England, expired as of 10 December 2021. See: The Coronavirus Act 2020 (Early Expiry) (No. 2) Regulations 2021, SI 2021/1399. —failing to comply with any direction, reasonable instruction, requirement or restriction given
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A tenant paid a deposit direct to a letting agent. The deposit was never protected and the prescribed information was never issued to the tenant. The contractual relationship (ie tenancy finder or managing agent) between the landlord and the agent is not known. Halfway through the tenancy, the landlord discovered that the agent had absconded with the deposit monies. The landlord immediately informed the tenant, but took no other action. At the end of the tenancy, the landlord returned half of the deposit money to the tenant. Is the landlord liable to the tenant in these circumstances for a breach of section 213 of the Housing Act 2004? The Q&A is posed against a background of mismanagement of the tenant’s deposit by the letting agent who will have been acting as the landlord’s agent. This mismanagement culminates with the agent absconding with the deposit. The landlord reimburses the tenant for half of the deposit. The question does not explain why only half was returned, but one may assume the remainder was retained to account for disrepair etc. An important aspect of the Q&A is that the tenancy has ended. Having so ended, the landlord is liable for breaches of section 213 of the Housing Act 2004 (HA 2004) which sets out the requirements for tenancy deposits in relation to shorthold tenancies. These
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This week's edition of Corporate Crime weekly highlights includes analysis of the first known appeal concerning the sale and marketing of knives, the recent Supreme Court judgment on attribution and confiscation orders and whether the new US Department of Justice (DOJ) corporate crime approach may deter self-reporting as well as news that a former Unaoil executive has been ordered to pay confiscation of £100,000 following his conviction for corruption last year and that HMRC has published a policy paper on the new Economic Crime (Anti-Money Laundering) Levy. All this, and more, in this week’s Corporate Crime weekly highlights.
Corporate Crime analysis: The decision in Achina v General Pharmaceutical Council reaffirms that those with convictions cannot seek to go behind the facts before their professional regulator. The appellant in this case was sentenced to two years and six months for theft of medications while employed as a pharmacist. Addressing the Committee of the General Pharmaceutical Council (GPhC), he made many attempts to go behind his conviction, flying in the face of the evidence he had accepted in the Crown Court. His lack of insight into the offending was key to the Committee, who ordered his removal from the register. The appeal against that removal was dismissed by the High Court. Written by Alecsandra Manning-Rees, barrister at 5 St Andrew’s Hill.
Local Government analysis: Any court judgement that starts with the words of Nelson Mandela clearly deserves careful consideration—‘there can be no keener revelation of a society’s soul than the way in which it treats its children’. In A local authority v G, Mr Justice MacDonald reluctantly authorised the deprivation of liberty under the inherent jurisdiction of a 16-year-old girl for whom there was a significant risk of suicide. As the judge put it, ‘I harbour grave reservations about this decision.’ Yet again, this is another judgment flagging up the crisis in secure accommodation. It makes compelling reading for all local authorities and other practitioners faced with a broken system that puts the lives of young people at risk. It helpfully sets out what amounts to a deprivation of liberty of a child or young person and addresses, head on, the challenges that local authorities face in trying to keep very vulnerable children and young people safe. Peter Edwards, director of Peter Edwards Law, looks at the issues.
Corporate Crime analysis: In this, the second part of their review of the powers of detention contained in the draft Coronavirus Bill, John Binns, partner and Lexis®PSL Corporate Crime Consulting Editorial Board member, Richard Reichman, partner and Ami Amin, associate at BCL Solicitors LLP, consider the powers of detention in the Health Protection (Coronavirus) Regulations 2020, SI 2020/129 and how they differ from those outlined in the draft Coronavirus Bill.
Corporate Crime analysis: On 20 March 2020, the Coronavirus Bill received its second reading in the House of Commons. This piece of emergency legislation contains a raft of new powers including the power to impose restrictions, nationwide, on people infected with the virus, aimed at controlling its spread. In this, the first of a two part series, John Binns, partner and member of the Lexis®PSL Corporate Crime Consulting Editorial Board, Richard Reichman, partner and Ami Amin, associate at BCL Solicitors LLP, consider the provisions in more detail. The paragraph references are to the provisions of the draft Bill as introduced.
Family analysis: In determining new criteria for the grant of a secure accommodation order, the Court of Appeal has made it clear that the consideration of the welfare of the child and of the proportionality of a secure accommodation order goes beyond the narrow statutory approach. The change should not make it substantively harder to be granted such orders, but the procedural route to them is more difficult. Frank Feehan QC at 1 King’s Bench Walk Chambers, leading counsel for the appellant, considers the judgment.
Family analysis: A teenager could only be placed in a residential unit in Scotland if he had ‘sufficient understanding’ to consent to the placement under paragraph 19 of Schedule 2 to the Children Act 1989 (ChA 1989). Rex Howling QC, a barrister at 4 Paper Buildings, considers the practical implications of this case for local authorities.
Local Government analysis: Sophy Miles and Gemma Daly, of Doughty Street Chambers, examine the Supreme Court's decision in Welsh Ministers v PJ concerning a patient who had been detained under the Mental Health Act 1983 (MeHA 1983) and later released subject to a community treatment order (CTO). The court ruled that the patient’s responsible clinician (RC) could not impose conditions in the CTO which would amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR).
This month’s edition of Family highlights revisits the approach of the courts to post-separation bonus earnings and non-matrimonial property, together with an overview of new provisions in relation to statutory child support. Delay caused by concurrent criminal proceedings is considered, as well as when removing parental responsibility is in a child’s best interests. In addition to links to analysis of other key decisions, recently updated and new content is also detailed, together with Brexit updates.
This week’s edition of Local Government highlights includes analysis of the Court of Justice Wightman decision which confirms that Article 50 notice could be revoked unilaterally by the UK before exit day, analysis of the Supreme Court decisions in LB Southwark v TFL and Secretary of State for Justice v MM. It also includes case reports on two interesting healthcare judicial reviews (R (on the application of MP) v Secretary of State for Health and Social Care and Secretary of State for Justice v MM) together with updates on children’s social care, social care, national non-domestic rating, governance, education and planning.
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