Lawrence P. Smith III, CFE, CPP, PI’s Post

An enforcement appeal worthy of note (maybe?) to LPAs folks out there. Insp Hilary Orr who gives expert and pithy canter through the tests to be met for each enforcement ground of appeal to succeed. CPD and/or a pretty darn good explanation on how to approach. How do you present your evidence? Well..... In this case, Insp Orr says: "One striking feature of the appellants evidence is that it is not in the form of sworn affidavits. It is understood that this was not possible initially due to COVID 19 restrictions. However, it is not clear why this was not resolved as the restrictions were lifted. Sworn evidence given on oath carries with it the risk that giving false evidence, could render the individual liable to prosecution. Accordingly, sworn evidence will usually carry greater weight than unsworn evidence. Accordingly, these statements will carry less weight". If the dates of occupation then go on to overlap, have gaps in them and there is contradictory evidence then you are well up against it. Note we had no counter evidence, but there was still doubt. You only need doubt on the balance of probability.... very neatly summed up by Insp Orr " I recognise that this conflicting evidence, in itself, is not decisive. Be that as it may, the decisive point is whether in the light of the cumulative weight of evidence, there are sufficiently clear, detailed and consistent facts in support of the appellants claim on the balance of probability." Didn't go all our way, we failed on the residential amenity point. No biggie, we will review and learn from that. Name to look out for : Kieran Balmer. Not on LinkedIn but part way through his Masters. Learning the beat. Tucked under the wing of Niall Mileman who is as old as the enforcement hills here in Wealden.... and knows a thing or too 😊 #teamwealden #planningenforcement #niallmilemanrocks

ICYMI: The Supreme Court’s Order in Relation to Lara v. PSP, Explained: As there has been a lot of confusion and misinformation regarding the U.S. Supreme Court’s Order yesterday in Lara, et al v. PSP Commissioner, I thought it prudent to explain what actually occurred and what it means. First and foremost, the Order did not address the merits of the matter. Rather, as is customary when the … Continue reading The Supreme Court’s Order in Relation to Lara v. PSP, Explained →

In a significant ruling, the U.S. Court of Appeals for the 9th Circuit decided that police officers can compel a suspect to unlock a phone using a thumbprint scan without violating the Fifth Amendment’s protection against self-incrimination. This decision, stemming from the case of United States v. Jeremy Travis Payne, marks a notable stance in an evolving legal area concerning the use of biometrics in criminal investigations. The court's unanimous ruling against Payne upholds a lower court's decision and emphasizes that the use of a thumbprint to unlock a phone does not require cognitive effort, likening it to other non-testimonial acts like providing a blood sample or fingerprints. The case originated from Payne's arrest by the California Highway Patrol, during which officers allegedly forced him to use his thumbprint to unlock his phone. Payne argued that this act was testimonial and thus protected by the Fifth Amendment. However, the court ruled that using a thumbprint to unlock a phone does not equate to conveying information from the suspect’s mind, a critical distinction in self-incrimination cases. The court noted that this act was merely providing access to potential information, similar to consenting to a search. This decision is informed by past Supreme Court cases, such as Doe v. United States and United States v. Hubbell, which helped clarify the limits of testimonial evidence. The court acknowledged the complexity and fact-specific nature of these cases, indicating that future cases might yield different results under slightly different circumstances. For instance, if a suspect had to select which finger to use, it might engage different legal principles. Additionally, the ruling addressed and dismissed Payne's

When P’s civil claim is compromised, a deputy will have to consider telling P about the value of their claim. It can be a difficult decision particularly where P is vulnerable to financial exploitation and the settlement is significant. Three authorities have previously attempted to grapple with the issue of whether P ‘should be told’ about the value of their claim: EXB v FDZ [2018] EWHC 3456 (QB) PBM v TGT [2019] EWCOP 6 DXB v PXL [2019] EWHC 2579 The very clever Tom Young and Sam Firth (and I!) didn’t consider that formulation of the capacity decision was quite right so Hayden J was asked to provide guidance in two linked cases. Hayden J has now handed down judgment in https://lnkd.in/eaYXErhf where he considers this issue of importance to property and affairs deputies. I will hopefully be holding a seminar on the decision next week! #courtofprotection #kingschambers #deputies #capacity

For the youth, understanding the mandate of the Office of the Chief Justice (OCJ) is crucial for appreciating how the judiciary operates and its role in upholding justice. Here’s a simplified explanation: 1. Supporting the Chief Justice: The OCJ helps the Chief Justice, who leads the judiciary and the Constitutional Court. This means they assist with the day-to-day management and operations that keep the courts running smoothly. 2. Providing Administrative and Technical Support: The OCJ handles tasks like managing court schedules, organizing legal documents, and implementing new technologies. This support ensures that the courts function efficiently and that judges can focus on their legal work. 3. Governance and Operational Support: The OCJ also helps with the broader management of the judiciary. This includes setting up policies, ensuring that courts follow proper procedures, and making sure that the judicial system remains fair and transparent. In essence, the OCJ plays a behind-the-scenes but crucial role in making sure that the courts can do their job effectively, upholding justice and the rule of law in society. Understanding this helps the youth appreciate the importance of administrative roles in the justice system and the overall functioning of the legal system.

What if the Police Refuse to File an FIR? While the BNSS, 2023 makes filing FIRs easier, there's a chance the officer in charge might refuse. Here's what you can do: 1. Approach the Superintendent of Police (SP): Section 174(4) of the BNSS allows you to file a grievance with the SP concerned. If the SP finds merit in your complaint (evidence suggests a cognizable offence), they will either: Investigate the case themselves. Direct a subordinate officer to investigate. 2. Magistrate's Court: If the SP doesn't take action, you can approach the Magistrate's Court. You'll need to file an application with an affidavit (sworn statement) detailing the incident and the police refusal. The Magistrate will give the police officer a chance to explain their decision. 3. Right to be Heard (New Provision): Section 223 introduces a new concept - the accused has the right to be heard before the cognizance is taken. This aligns with the principle of natural justice ("audi alteram partem" - hear the other side). Remember: It's important to document everything - the incident, the police refusal, and your efforts to escalate the issue. Consider seeking legal advice if navigating these procedures becomes complex. 

It has been observed very often that most of the time when aggrieved reach police station for registration of FIR, the police instead of recording the statement of police under S. 154 CrPC they either start to hold inquiry or they do not register FIR at all. Furthermore, few court direct the aggrieved to file criminal complaint instead of pursuing the registration of FIR before police. Honourable Supreme court has observed that no such interpretation of law can be allowed to let the police escape from their obligations. The court further observed: Under section 22-A, Cr.P.C, it is not the function of the Justice of Peace to punctiliously or assiduously scrutinize the case or to render any findings on merits but he has to ensure whether, from the facts narrated in the application, any cognizable case is made out or not; and if yes, then he can obviously issue directions that the statement of the complainant be recorded under Section 154. Such powers of the Justice of Peace are limited to aid and assist in the administration of the criminal justice system. He has no right to assume the role of an investigating agency or a prosecutor but has been conferred with a role of vigilance to redress the grievance of those complainants who have been refused by the police officials to register their reports. The remedy of filing a direct complaint cannot measure or match up to the mechanism provided under section 154, Cr.P.C., in which the Officer Incharge of a Police Station is duty bound to record the statement and register the FIR if a cognizable offence is made out. If in each and every case it is presumed or assumed that instead of insisting or emphasizing the lodgment of an FIR, the party may file a direct complaint, then the purpose of recording an FIR, as envisaged under section 154, Cr.P.C., will become redundant and futile and it would be very easy for the police to refuse the registration of an FIR with the advice to file direct complaint.

In the latest in our ongoing series of case reviews and analysis published today, we review a Court of Appeal case which considered an appeal against the striking out of a claim where lengthy delays were partly attributable to the court’s own errors. The review highlights that the decision very much turned on its facts, and is a useful guide on the application of CPR 3.4(2)(b) - and a timely reminder of the procedural issue in ensuring that matters remitted to the FTT are transferred correctly. Read the article in full here: https://lnkd.in/e8gsUSWt

‘Fair and effective enforcement’ has strong support from the public. In our first ever public perception research, members of the general public in England and Wales showed their support for a fair and effective enforcement as a necessary part of the justice system. Vulnerability considerations, repayment plans and the ability for creditors to reclaim the amount owed in full are all seen as important. The challenge for policymakers and civil servants is to make sure that enforcement is funded properly to meet the expectations of the public. At a time when we’re still awaiting the implementation of a first fee increase in ten years, with the strong likelihood of system and/or fee structure reform to go alongside it, we’re at a critical point for the profession. Moving forward, the profession has a key role to play in supporting the Ministry of Justice (MoJ) and the Enforcement Conduct Board (ECB) as they work to shape the future of the profession and ensure that we collectively meet the public’s expectations. To find out more about the full results please visit: https://lnkd.in/eDWrKJsf

High Court Enforcement Officers Association recently carried out a public perception survey and the results are positive. 83% agreed or strongly agreed that fair and effective enforcement is a necessary part of the justice system. To read the full report click the link below. https://lnkd.in/eDWrKJsf #HighCourtEnforcement #Research #Survey #TheSheriffsOffice #HighCourt #Report #Public #JusticeSystem