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Assault
Bail
Children's Hearings
Interdicts
Legal Aid
Small Claims
Assault
At
Court, if you are found guilty or plead guilty to an assault,
you can be dealt with in a number of ways. The Court could
impose a fine or a period of imprisonment, or order you to
pay compensation to the victim. There are also other options
available to the Court, such as probation or community service.
If no criminal charges are brought it is still possible that
an aggrieved person could seek damages from you in a Civil
Court.
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Bail
Being
granted bail means that a person who has been charged with
an offence is released from the Court. In some cases the person
may be released from a police station after having been charged
with an offence on what is known as a police undertaking to
appear in Court on a particular day.
An
accused person has the right to be granted bail unless there
are specific grounds for it being refused.
The
main reasons for refusal are as follows:
First, if there is a high risk that the accused person will
not appear at the hearing or is likely to commit an offence
while on bail. Second, if the accused is likely to constitute
a danger to the public. Third, if the accused has been charged
with a particularly serious offence, such as murder. Fourth,
if the accused person has been charged whilst he is already
on bail for other matters or has further court appearances
pending.
If
bail is granted, conditions will be imposed on the accused
person. The Standard conditions of bail are as follows:
1 That the accused appears at the appointed time at every
Court hearing relating to the offence with which he is charged.
2 That he does not commit an offence whilst on bail.
3 That he does not interfere with witnesses or otherwise obstruct
the course of justice whether in relation to himself or any
other person.
4 That he makes himself available for the purposes of enabling
enquiries or reports to be made to assist the Court in dealing
with him for the offence with which he is charged.
The
Court may impose any other conditions as it sees fit. An example
of this may be a condition for the accused person to keep
away from a specific place or person. The Court can impose
a condition to lodge money but that is most unusual nowadays.
If
an accused person has been granted bail and he breaks any
of the conditions imposed upon him then that is itself a criminal
offence. Committing an offence on bail can lead to penalties
for the offence itself being increased.
If
the accused person appears in the Sheriff Court and is refused
bail, then there is a right to appeal to the High Court. Any
person who appears in Court from custody is entitled to the
services of the Duty Solicitor under the legal aid scheme.
That Solicitor will be able to make a request to the Court
for bail to be granted.
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Children's Hearings
The Reporter to the Children's Panel may be
asked by various bodies, for example the local Social Work
Department or the Procurator Fiscal, to refer cases to the
Panel for its consideration. It is wrong to look upon the
Panel as a Court as its intention is to provide a forum away
from the traditional Court setting for issues involving children
to be considered. At the heart of the system is the concept
that the Panel should try to do what is in the best interests
of the child.
Nevertheless
there is no doubt that a parent who receives referral papers
in respect of a child may be worried by the prospect of appearing
at a Children's Hearing. Solicitors in McCash & Hunter
have knowledge and expertise in relation to Children's Hearings
and, they will be able to advise you of what to expect at
the Hearing, to advise you on the options open to the Panel
and to provide you with advice on rights of appeal.
There
are many reasons why a child may be referred to the Panel
for a Hearing. For example, it may be that the child is considered
beyond the control of his parent or is falling into bad company.
It may be that the child has committed a criminal offence
and is being referred to the Panel instead of the local Sheriff
Court. A child may have failed to attend school without reasonable
excuse or may have misused drugs. In each case, where the
Reporter makes a referral to the Panel, the grounds of referral
will be outlined in the paperwork that refers to the case.
It
may be that the grounds of referral are not accepted by a
parent or the child. If this is so then the Panel can not
consider the case any further. In such circumstances the case
requires to be sent to the local Sheriff where a Hearing will
take place. The Hearing is in private and is more relaxed
than other business in the Court. However, it is still advisable
to seek legal advice from a Solicitor. It may be that you
would qualify for legal aid so that you can be represented
by the Solicitor. If the Sheriff does not find the grounds
of referral proved then the case is dismissed. Where the Sheriff
considers that the grounds for referral are established then
the case will be sent back to the Panel to be considered further.
When
the Children's Panel have decided the case it can then consider
a number of disposals. The Hearing itself may simply decide
to discharge the case and take no further action. On the other
hand it may be decided that measures are required to protect
the child and some form of supervision may be imposed. This
may mean that a child is taken into care or he may still reside
at home but special conditions may be imposed in connection
with that.
If
you feel that a disposal of the Children's Panel is unfair
or inappropriate then you should again consult a Solicitor.
In all cases you have a right of appeal and McCash & Hunter
can advise you as to how to proceed in connection with that.
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Interdicts
An
Interdict (or an injunction as it is know in England) is an
order of Court granted in favour of one party against another,
preventing that other party from committing an illegal act.
If that party then carries out the illegal act, regardless
of the existence of the interdict, he or she is in breach
of that Interdict and may be found to be in contempt of Court
and punished.
Interdicts
are frequently applied for by spouses or domestic partners
when a relationship has come to an end. Interdicts can be
granted for a variety of reasons in such cases. Often, they
are applied for to prevent one partner or spouse behaving
violently or aggressively towards the other, or to prevent
removal of children from the care of one partner. Applications
for Interdict need to be made to the Court. McCash & Hunter
will advise you fully. An Interdict is frequently applied
for as an emergency measure and therefore it is important
that you see a Solicitor as soon as you possibly can. Your
Solicitor can quickly make application to the Court for an
interim Interdict, which may be put in place pending the granting
of a final Interdict. If the parties are married, an order
known as a Power of Arrest may be attached to the Interdict
or interim Interdict. Generally, a Power of Arrest is not
available where the couple are not married.
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Legal Aid
People
often worry about consulting a Solicitor because they believe
that they will not be able to afford his fees. Many people
do not realise they may be eligible for Legal Aid, which might
mean they would not have to pay their Solicitor anything or
only a proportion of the costs involved.
There
are two types of legal aid in Scotland. First there is Advice
& Assistance which is available for both civil and criminal
matters. Secondly, individuals can apply for Legal Aid to
allow them to raise or defend a Civil Court Action or to provide
representation for a criminal trial.
When
a person first seeks the services of a Solicitor, the Solicitor
will normally assess that person's eligibility for Legal Aid
under the Advice & Assistance scheme. There are complicated
rules relating to both income and capital and allowances are
given if you have a partner, child or dependent relatives
living with you. You will need to disclose to your solicitor
your earnings and any savings.
Legal
Aid provided under the Advice & Assistance scheme does
not normally pay for a Solicitor to represent you at Court,
although in some cases, mainly criminal, it may do. Ordinarily,
to obtain legal aid funding for representation at Court a
person must complete a further legal aid application. The
paperwork required for this is much more complicated than
that for Advice & Assistance purposes.
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Small Claims
If
you have a legal dispute with someone, or if there is a financial
claim in which you are involved, then you may find yourself
as a party in a Small Claim Action in the Sheriff Court.
At
the moment as long as the amount at issue is no more than
seven hundred and fifty pounds, any litigation can only be
dealt with under the small claims procedure, which is designed
to be a simplified form of court action. The idea is that
in small claims, the amount of time, money and effort spent
on resolving the dispute should not become as enormous as
it can in the ordinary civil courts, in which costs and expenses
can run into thousands of pounds, often more than the sum
being fought over. The government are consulting on proposals
to increase the limit substantially.
In
the small claims procedure, court expenses are severely limited.
If you win your case, you will get no more than seventy five
pounds of expenses, plus certain outlays you may have made,
on top of the sum of money you are suing for. In other words,
if you hire a lawyer to fight the case for you, his or her
full bill will not fall on the losing party to pay. You may
have to meet part of it from your own resources. However,
if the sheriff presiding in the court thinks that your opponent
has put up a ridiculous defence, or has acted improperly,
full costs may exceptionally be awarded.
Remember,
although you may be entitled to legal advice and assistance
in getting preliminary help from a solicitor, civil legal
aid is not available to pay for a lawyer to conduct the case
in court.
If
you wish to raise or defend a small claim, do see a solicitor
first. If you are the pursuer, you must lodge the small claim
form outlining the basis of your case at the sheriff court
with the relevant warranting fee. A copy of the form must
then be served on the defender, and if the defender wants
to contest the case, both parties will come to the preliminary
hearing fixed by the court. At that hearing, the sheriff tries
to find from both parties what issues are to be resolved or
proved, and should try to look into the case to see if the
parties can be brought to a resolution of the matter there
and then. If they cannot, a full hearing is fixed for a further
date, and evidence of witnesses and any relevant documents
will be brought to the attention of the court.
After
the full hearing, the sheriff makes a judgment in favour of
one party or another, together with an order in respect of
interest and expenses. If the sheriff makes an error in law,
the disappointed party can appeal.
Although
the small claim system was designed to avoid the parties'
need for legal representation, experience has shown that the
party without a lawyer is often at a distinct disadvantage.
See McCash & Hunter first, if you are going to be involved
in a small claim.
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