Wed 13-May-09 01:17 PM by shawn

My client is being prosecuted by the LA for alleged benefit fraud (s. 111A).

She is very distressed and has MH problems. I've been encouraging the client most strongly to seek legal representation but what if she doesn't - so far she has not been very good at helping herself nor in helping me to assist her. As far as I'm aware, a defendant has the right to an 'assisstant' (AKA 'McKenzie Friend' although it seems this term has fallen out of favour), but I'd be grateful if someone could confirm this as I would consider going with her.

I'm totally livid about this case as the cause of the whole problem was the local LA's deliberate failure to act on a reported change of circs as they had been given wrong information by the DWP - ie. they chose to ignore my client's reporting of the CoC rather than seeking clarification. They are now prosecuting on a non-reported CoC, related to the first one, which would not even have come about if the LA had done thier job properly!

If my client doesn't go to court she will doubtless be found guilty in her absence, and if she does, it is highly likely that she will fall completely to pieces and might even become suicidal. She was not able to be IUC'ed as she was so distressed.

I'm extremely bitter, angry and resentful and I'm running out of options to help my client. I'm even considering resigning as I've had several similar cases the last few weeks and the feelings of hopelessness, helplessness, unfairness and injustice are quite overwhelming.

What can I do to help my client?

Hi Tony

A person can have a McKenzie friend in court but the role is very limited A MF gives moral support, can talk to the person and take notes. A MF can give advice but must be careful not to be seen as acting as legal representative. A MF does not have a right of audience before the court but can speak if invited to do so by the bench.

I’ve been to magistrates courts many years ago several times as a young person’s caseworker on a homelessness project and been allowed to address the court as to how we were helping them but I was not acting as a MF as they had solicitors.

However, I have witnessed debt caseworkers acting, successfully, as MF’s in the magistrates for council tax cases explaining to the court the ongoing casework being done on behalf of the clients.

The person simply informs the clerk of the court before the proceedings start and does not have to use the specific term “McKenzie friend”.

Regards
Paul

It would be worth talking to a criminal law practitioner to explore other possible options (eg you making a formal statement setting out your concerns and the issues concerning the lack of action on the C of C).

It's also worth seeking some advice concerning malicious prosecution and/or Misconduct in a Public Office by the LA officials as you state: "the cause of the whole problem was the local LA's deliberate failure to act on a reported change of circs as they had been given wrong information by the DWP - ie. they chose to ignore my client's reporting of the CoC rather than seeking clarification. They are now prosecuting on a non-reported CoC, related to the first one, which would not even have come about if the LA had done their job properly!"

Misconduct in a public office is an offence which arises when a public office holder "wilfully neglects to perform his duty and/or wilfully misconducts himself and to such a degree as to amount to an abuse of the public's trust in the office holder without reasonable excuse or justification" It is also actionable as a tort in civil law.

Malicious prosecution is: 1. Someone has been prosecuted, 2 The prosecution has been determined in his favour (eg acquitted or no evidence offered) 3. The prosecution was taken without reasonable and probable cause 4. It was motivated by malice and the claimant has suffered damage. Harder to prove than Misconduct offence.

See www.crimeline.info for more details.

Thanks very much Gentlemem for these contributions. I will certainly look into the avenues you suggest Neil as there are factors which suggest some element of maliciousness on the part of the LA. And thanks for pointing showing us this great info resource!

My client has now found a solicitor so things are not so bad now.

Neil, this is a s.111A allegation. In the evidence offered by the prosecution, there is only a few bits of paperwork from the claim and the statements from the I.O's and the benefit manager confirming the (incorrect) amount of overpayment and that fact that the client was too distressed to be interviewed. There is not the slightest hint of how or why they believe the claimant to have been dishonest or shown dishonest intent to procur benefit, and documents supporting the client, which were included in the first-tier tribunal response are not included in the prosecution evidence. Are these occurrences normal in your experience?

Thanks again - both of you.

Tony

It sounds like they may struggle to show beyond reasonable doubt that she was dishonest (assuming they get over the hurdle about her declaration). They usually rely on admissions of dishonesty (Q: "Did you think you were doing wrong?" A: "Err, yeah I guess so") during interviews under caution for such evidence unless it's strong in some other way.

Having become quite involved in this area of work, nothing surprises me anymore about the rush to prosecute using evidence which is flawed.

could you write a statement to the court explaining the case as you see it- how you believe that she's been let down by the LA through their poor actions in dealing with her claim and perhaps also outlining your client's vulnerability.

Has this also generated an overpayment of HB which might be appealed in the usual way? I have had at least one case (a LTAHW) where prosecution was threatened but withdrawn after the Appeal was won. In this case could it be argued that if the overpayment isn't recoverable as it was caused by an official error then the claimant couldn't therefore be guilty of any dishonest failure to disclose. Going by my experience of the case above the fact that and overpayment was under appeal to a Tribunal had the effect of staying any action in the criminal courts until it was decided.

Has your local authority considered alternatives to prosecution. ie benefit penalty or caution.
They also have to consider if it is in the best interest to launch a criminal trial.
I have found that in cases like this a judicial review pre action protocol does the trick. Try to discuss this with her solicitors.