News from MTM Defence Lawyers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

11 November 2010: Acquittal in breach of bail condition case

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

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

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

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

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

28 October 2010: Successful appeal in DSS fraud case

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

Read the judge's notes of reasons.

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

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

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

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

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

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

Media Links

From the Herald: Scots courts face stampede of challenges after UK ruling:

From the Firm Magazine: England 1-0 Scotland

From the Scotsman: Scots Legal Upheaval, Page 2, Page 3

27 September 2010: MTM shows evidence to be unreliable as case against client is dropped

Not only does MTM frequently succeed in keeping cases from coming to court, but the firm also has an enviable record in highlighting the unreliability of evidence offered by the prosecution. In a recent case at Falkirk Sheriff Court, arguments put forward by the MTM team in the course of a trial led to the prosecution abandoning a case of serious assault against a client. The evidence of the alleged victim was deemed by the prosecutor to be unreliable and the case was dropped.

16 August 2010: Presenting expertise and stopping cases from coming to trial

'Behind the scenes' work at MTM has played a significant role in preventing A two Jury-level cases coming to trial. One case involved a charge of Fireraising in a block of flats . MTM investigations uncovered medical evidence, supported by expert psychiatrists, which indicated that the client was not responsible for his actions. In the other case MTM challenged the use of police interview evidence because the police used unfair tactics to obtain a confession. In both cases information uncovered by MTM was instrumental in persuading the Procurator Fiscal to desert the prosecutions.

8 July 2010: Interim arrangements put in place for police questioning

Interim arrangements have been put in place by prosecuting authorities for all cases from 8 July 2010 in Scotland. The case of Cadder v HMA in May at the Supreme Court in London led to interim guidelines being issued on access to a solicitor when a person is interviewed or questioned by police. Scots Law does not give any right to a person being questioned by police to have a lawyer present. This is quite unlike the situation in England where a person has such a right. In Scotland, the interim arrangements mean that someone brought in for questioning now has access to a solicitor before interview, whether in person or by telephone, and may also (if necessary) have a solicitor present at the interview itself. This is no way constitutes any legal right, but is simply a measure that has now been put in place by prosecuting authorities with regard to the potential implications of the Cadder case for any prosecution.

1 June 2010: MTM appointed to lecture at Glasgow University

Neil Hay, Solicitor-Advocate at MTM, has been appointed as a Tutor in Criminal Court Practice on the Diploma in Legal Practice course at the University of Glasgow. Neil also lectures at Edinburgh Napier University.

25 May 2010: Successful defence of clients in a position of trust

Reputation and livelihood are intimately connected. Losing your good name is not only mortifying, but is also often accompanied by the loss of livelihood – to say nothing of the threat of possible imprisonment.

MTM has just defended two such cases – and we defend many such cases all over Scotland. In the first case a carer was found not guilty, after trial at Falkirk Sheriff Court, of a charge of stealing £1,000 from a disabled man who was in her care. In a second successfully defended case, a doorman at a nightclub in Alloa was found not guilty after trial of a serious charge of assault.

Both cases were important because they were centred on clients who were in positions of responsibility. If either of them had been convicted, then their career would have been effectively at an end, notwithstanding that they may of course have been sent to prison because they had committed offences whilst they were in a special position of trust.

11 May 2010: Client defended against charge of assault on a shopkeeper

A MTM client has been found not guilty at Falkirk Sheriff Court of a charge of assault, in a case involving an alleged assault on a shopkeeper. Such cases are, quite rightly, taken very seriously by courts as shopkeepers are seen as vulnerable due to the nature of their work. Sentences upon conviction in such cases can therefore often be severe.

20 April 2010: Reputation is all – and so is expertise

Two MTM clients have been cleared on the same day of two serious charges at Falkirk Sheriff Court.

In the first case, the client was charged with a serious sexual offence. If he had been convicted he would have almost certainly have faced imprisonment and his name entered on the Sex Offenders Register. The client had no history of sexual offending.

Such cases are a difficult area of the law and some of the most sensitive. The potential damage to reputation is almost incalculable – from personal relationships to work and social life. Skilful cross-examination of the complainer in the case by the MTM team led to the Procurator Fiscal deciding to abandon the prosecution.

In the second case, a client, who had been remanded in custody to await trial, was found not guilty of an alleged serious dishonesty offence under the Civic Government (Scotland) Act 1982. The client, who had no previous convictions for dishonesty, would have faced many months of imprisonment had they been convicted.

Each case illustrates the power of professional knowledge and the value of skilful advocacy. There is another point to all this too: MTM is on the side of its clients, often when no-one else is.

16 April 2010: Road traffic client acquitted of two charges – prosecution evidence proved unreliable by MTM team

An MTM client has been successfully defended against two charges under the Road Traffic Act 1988. He was acquitted of the charge of driving a vehicle whilst under the influence of alcohol or drugs, and of a charge of failing to provide a specimen of breath to police investigating drink driving.

The acquittal was on the basis of a legal submission of no case to answer. MTM had spotted a legal technicality, and the prosecutor in the case had failed to lead evidence on an important point. Under the section 4 charge, a doctor appearing as an expert witness for the prosecution stated that the client was unfit to drive. However, cross examination by the MTM defence team demonstrated that this evidence could not be relied on.

April 2010 Newsletter

15 March 2010: MTM wins road traffic case in Sheriff Court and protects driver’s livelihood

MTM has successfully defended a client against a charge of driving without due care and attention in an incident involving two police officers. The allegation was aggravated by the suggestion that the incident had caused a police vehicle to take evasive action to avoid a collision. The only eyewitnesses in the incident were two experienced police officers.

Fortunately, the driver involved, whose livelihood dependent on being able to drive an HGV, had the benefit of the MTM defence team to call on. MTM’s representation and challenging of the ‘facts’ led to the case being dismissed. It was all a great relief to our client, who had maintained his innocence throughout.

15 March 2010: MTM succeeds in making exceptional hardship case for client

MTM has succeededrtl in pleading exceptional hardship on behalf of a client in the Justice of the Peace Court. The defence was for a client who already had 12 points on his licence, and who was studying to improve employment prospects. The plea succeeded based on family circumstances and the need for continuing study. Instead of a ban, the court imposed penalty points and a fine.

9 March 2010: Client acquitted of charge that would have meant years in prison

An MTM client has been acquitted of a very serious charge at a Sheriff & Jury Trial in Alloa. The allegation was that the client had repeatedly assaulted a person, resulting in a fractured eye socket and damage to an eye. Had the client been convicted of the charge he would have been likely to have received a custodial sentence measured in years.

2 March 2010: Expert knowledge wins through in Sheriff & Jury case

MTM has once again successfully challenged the use of confession evidence in Sheriff and Jury case. The charge of serious assault would have led to sentence of several years of imprisonment if the client had been convicted. MTM uncovered the fact that police officers had not used proper procedures in noting the alleged confession, which was disputed by the client. Once again, expert knowledge of the law of evidence and of the legal authorities in this area makes all the difference.

2 March 2010: MTM upholds client’s untarnished reputation

A charge of serious domestic breach of the peace in the Justice of the Peace has been successfully defended by MTM on behalf of a client. The client, who has no previous convictions, has been able to walk away an innocent man – with his reputation intact and unsullied.

2 March 2010: Knowledge brings success

MTM has been successful in having a serious Sheriff & Jury case thrown out of court. The charge was assault by using a knife to injure a person. A defence submission of 'no case to answer' was upheld by the Sheriff, leading to the prosecution being stopped mid-trial. The case was won on a legal technicality concerning the rules of evidence when a crown witness claimed not to be able to remember witnessing the assault. Again, legal knowledge and knowledge of legal procedure have been decisive.

17 February 2010: Sheriff court acquittals

Acquittals so far this month in the Sheriff Court include charges of assault, domestic assault, breach of the peace, and sexual offences under the Criminal Law Act 1995.

17 February 2010: Napier University appointment for MTM

Neil Hay has been appointed as a part-time lecturer at Edinburgh Napier University, lecturing in the Law of Evidence. The appointment is a reflection of the firm’s reputation, in academic as well as professional circles, for its expert knowledge of law as leading criminal law practitioners.

The appointment follows Neil Hay’s tutoring of students last year in Criminal Court Practice at Edinburgh University, as well as Martin Morrow’s recent invitation to give a guest lecture at the New York Law School.

16 February 2010: MTM in New York

Solicitor-Advocate Martin Morrow of MTM Defence Lawyers will be addressing New York Law School on Tuesday, February 16 on the subject of Scotland's legal system and the Scottish criminal justice system. His appearance is co-sponsored by the New York Law School and the New York Law School's Center for Professional Values and Practice. The invitation to speak at the School is a real honour for MTM, which works hard to promote Scottish legal education.

Martin Morrow is a member of the Council of the Law Society of Scotland and has served on the Criminal Law Committee, the Legal Aid Committee, and convened the Remuneration and Update Committees. He was responsible for the liaison between the Law Society and the Compliance Unit of the Scottish Legal Aid Board when the Criminal Assistance Register was introduced.

29 January 2010: MTM wins serious domestic assault case

After a four-day Sheriff & Jury trial, an MTM client has been acquitted of a serious charge, which could have had profound implications for the client's future and reputation. The charge, Serious Assault of a domestic nature, resulted in a 'Not Proven' verdict after trial. A 'Not Proven' verdict is often misunderstood by people outwith the legal profession, but has the same meaning as a 'Not Guilty' verdict: the accused person is acquitted of the charge and cannot be tried again for the same offence.

29 January 2010: At the legal forefront

MTM remains at the forefront of legal developments, working on cases that have been uppermost in the minds of Scottish leading legal practitioners. As part of this, MTM's Solicitor-Advocates have been involved in several recent high-profile High Court and Appeal Court cases, which have been reported in legal journals. To read more, go to:
HMA v Boyle - Crown Appeal on appropriate sentences for aggravated murders
Caldwell v HMA - The effect of a plea of Diminished Responsibility in trial for murder
Martin v HMA - Application to separate charges in a trial for two murders

14 January 2010: MTM successfully protects corporate client's reputation

MTM has successfully defended a prosecution against a company under the Food Safety Act for alleged Health and Safety contraventions. The case involved a restaurant business, a sector in which reputation is of paramount importance. Had it been successful, the prosecution could have had disastrous consequences for the company's future.

As a direct result of detailed research undertaken by MTM lawyers, we found information that meant that the prosecution was incompetent in law. The prosecutor was forced to drop the prosecution against the company.

It all goes to show that it is often the work that is done out of court and behind the scenes that really matters. This is particularly true when someone's reputation is on the line: it is as true for companies as it is for individuals.

14 January 2010: MTM gets acquittal despite eye-witnesses' evidence

An MTM client has been acquitted of two very serious sexual offences at a Sheriff & Jury trial. This is the result of a thorough investigation of the prosecution evidence and extensive preparation of the defence case over a period of about a year, and then expert cross-examination and advocacy in court.

Had the client been convicted, the maximum sentence was five years imprisonment. The acquittal was despite the evidence of various eye-witnesses who gave evidence that he had committed the offences.

April 2009 Newsletter