Hello All,
Some people expressed interest in knowing the answer to my original question about funding a stand alone application to set aside a restraining order. Here’s the eventual response from the LAA:
“Section 6.4 of the Criminal Legal Aid Manual confirms that the original representation order, for the substantive offence, covers a variation of a crown court order as it is considered incidental.
“However, this appears to be a restraining order imposed by the Magistrates court, so it is more likely prescribed proceedings in the Magistrates Court. Section 25 Annex H of the Criminal Legal
Aid Manual gives details of all prescribed proceedings and protection from harassment act restraining orders are covered there.”
So the answer is, though civil in jurisdiction, such an application attracts criminal legal aid.
Regards,
Joe Mensah-Dankwah
Foresters Solicitors Limited
155 Hoe Street
Walthamstow
London E17 3AL
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Foresters Solicitors Limited is registered in England and Wales, with registered office at 155 Hoe Street London E17 3AL. Company Number 6650930. Directors: Joe Mensah-Dankwah, Alan Hardy Boulton, John Yiannourides. This firm is authorised
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From: Edward Fenner <edward.fenner@fmwlaw.co.uk>
Sent: 28 June 2019 19:33
To: Joe Mensah-Dankwah <Joemensah@foresterssolicitors.co.uk>
Subject: Re: Funding an Application to set aside a Restraining Order
An appeal in the crown court is effectively a re-hearing of the lower court trial. It is not an application to overturn conviction. In those circumstances the order will automatically fall.
Best Wishes
Ed
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On 28 Jun 2019, at 19:18, Joe Mensah-Dankwah <Joemensah@foresterssolicitors.co.uk> wrote:
Obviously pertinent question, and most illuminating discussion. Thanks all, and have a nice weekend.
Regards,
Joe Mensah-Dankwah
Foresters Solicitors Limited
155 Hoe Street
Walthamstow
London E17 3AL
T: 020 8521 5999
F: 020 8521 5996
DX: 32016 Walthamstow
Foresters Solicitors Limited is registered in England and Wales, with registered office at 155 Hoe Street London E17 3AL. Company Number 6650930. Directors: Joe Mensah-Dankwah, Alan Hardy Boulton, John Yiannourides. This firm is authorised and regulated by the Solicitors Regulation Authority.
This email is confidential and may be privileged. It is for the use of the named recipients only. If you have received it in error, please notify us immediately and delete it from your computer system. Please do not copy or disclose its contents to any person or body.
From: Rakesh Bhasin <rb@edwardsduthieshamash.co.uk>
Sent: 28 June 2019 18:43
To: Richard Atkins <richardatkinskl@btinternet.com>
Cc: Joe Mensah-Dankwah <Joemensah@foresterssolicitors.co.uk>; kramdhary@yahoo.com; members@mail.lccsa.org.uk
Subject: Re: Funding an Application to set aside a Restraining Order
The order was an order on conviction so it falls by the wayside unless the crown apply for an order upon acquittal.
If you go back to the Judge - s/he will no doubt then consider whether a RO on acquittal is appropriate and the Crown will then realise they should have asked for one.
Rakesh Bhasin
Edwards Duthie Shamash
Sent from my iPhone
On 28 Jun 2019, at 17:07, Richard Atkins (via members list) <members@mail.lccsa.org.uk> wrote:This message originated from outside your organization
I’m not so sure about this. Surely the Restraining Order was made as an ancillary order to the Assault charge and would stand or fall on the general appeal?
For instance a football banning order or a disqualification order would stand or fall on the decision of the Appeal in terms of guilt or innocence.
Whilst the Magistrates Court can make a Non-Conviction Restraining Order on acquittal the order you have was made ancillary to a conviction – so it should be treated as an ancillary order.
Was this not raised in the Crown Court at the time of the acquittal – if not try and get it restored before the judge.
Richard Atkins
From: members@mail.lccsa.org.uk [mailto:members@mail.lccsa.org.uk] On Behalf Of Joe Mensah-Dankwah
Sent: 28 June 2019 14:05
To: kramdhary@yahoo.com; members@mail.lccsa.org.uk
Subject: RE: Funding an Application to set aside a Restraining Order
Thanks for that view Kaushik. I have gone to the view that it falls away because the test for an order is different as between the two sections. Does anyone have a Trainee or NQ still doing some academic studies who might be interested in writing a paper on this topic? 😊/
Regards,
Joe Mensah-Dankwah
Foresters Solicitors Limited
155 Hoe Street
Walthamstow
London E17 3AL
T: 020 8521 5999
F: 020 8521 5996
DX: 32016 Walthamstow
Foresters Solicitors Limited is registered in England and Wales, with registered office at 155 Hoe Street London E17 3AL. Company Number 6650930. Directors: Joe Mensah-Dankwah, Alan Hardy Boulton, John Yiannourides. This firm is authorised and regulated by the Solicitors Regulation Authority.
This email is confidential and may be privileged. It is for the use of the named recipients only. If you have received it in error, please notify us immediately and delete it from your computer system. Please do not copy or disclose its contents to any person or body.
From: kaushik ramdhary <kramdhary@yahoo.com>
Sent: 28 June 2019 13:55
To: Joe Mensah-Dankwah <Joemensah@foresterssolicitors.co.uk>; members@mail.lccsa.org.uk
Subject: Re: Funding an Application to set aside a Restraining Order
This is my view. A restraining order can be imposed on conviction or acquittal. In this case, it was an acquittal but the restraining order stands as the complainant would have asked for one in the mags. The only way you can get rid of it is if the complainant makes an application in the mags to have it withdrawn and the matter would be listed.
On Fri, 28 Jun 2019 at 13:11, Joe Mensah-Dankwah
<Joemensah@foresterssolicitors.co.uk> wrote:
Does anyone know the answer to this?
We have successfully appealed, in the crown court, a conviction for assault. Ordinarily the sentence falls away, so the crown court said nothing about the sentence. However, in this case, a restraining order was made by the mags. Now, after the euphoria of victory had waned, the client has come back asking if we could have the restraining order “removed”. My view is that a fresh application to set aside the RO needs to be made to the mags ct. I have asked the LAA whether we can use the same Rep Order (assuming no change in circs) and claim a separate fee. They have not been able to give an answer, but instead answered one about appeals which I did not ask. My view is that given that the granting of a RO follows the civil standard of proof, we cannot apply for and use a criminal Rep Order for this. I have seen one view online which suggests that one can in some cases.
What do you say, folks?
Regards,
Joe Mensah-Dankwah
Foresters Solicitors Limited
155 Hoe Street
Walthamstow
London E17 3AL
T: 020 8521 5999
F: 020 8521 5996
DX: 32016 Walthamstow
Foresters Solicitors Limited is registered in England and Wales, with registered office at 155 Hoe Street London E17 3AL. Company Number 6650930. Directors: Joe Mensah-Dankwah, Alan Hardy Boulton, John Yiannourides. This firm is authorised and regulated by the Solicitors Regulation Authority.
This email is confidential and may be privileged. It is for the use of the named recipients only. If you have received it in error, please notify us immediately and delete it from your computer system. Please do not copy or disclose its contents to any person or body.
Foresters Solicitors Limited is registered in England and Wales, with registered office at 155 Hoe Street London E17 3AL. Company Number 6650930. Directors: Joe Mensah-Dankwah, Alan Hardy Boulton, John Yiannourides. This firm is authorised and regulated by the Solicitors Regulation Authority.
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