Who must wear a face covering?
In the UK, face coverings in shops and supermarkets was made compulsory from the 24th July 2020 and it has also been made compulsory to wear a face covering on public transport. This rule does not apply to staff and they are not required to enforce the use of face coverings. The face covering does not necessarily have to be a ‘mask’ but must cover the nose and mouth.
Did you know however that you can be exempt from the rules for certain reasons? It is not compulsory for a child under 11 to wear a mask, for example. You do not need to wear one if you suffer from a physical or mental illness, impairment or disability, and putting a mask on would cause you distress. You also do not need to wear a mask/covering if you are travelling with or providing assistance to someone who relies on lip reading to communicate or if you need to eat, drink or take medication. Finally, you do not have to wear a mask if you are trying to avoid harm or injury or the risk of harm of injury to yourself or others, or if you are escaping the risk of harm and you do not need to have a face covering with you. As is often the case with the law, what constitutes a ‘risk of harm or injury’ can be difficult to work out.
From 22nd August 2020 certain other exempt categories were added including elite sportsmen and women, their coaches, professional referees, dancers, and choreographers. Police officers and transport workers are already exempt.
People who fail to comply will generally receive a fixed penalty notice for payment of £100 (reduced to £50 if paid within 14 days.) The power exists however, to impose an unlimited fine for more serious cases such as those who repeatedly contravene the regulations.
Will signing post-covid
Wills and Probate
Did you know a Will has to be signed in a very specific way to be valid? The person making the Will has to sign it in the presence of two people, who must not be mentioned in the Will or married to anyone mentioned in the Will.
All 3 people must be together when the Will is signed and all must see each other sign. Even if someone was called away mid-signing this can invalidate the Will and there have been cases on this very point.
Because the signing process is so crucial to the validity of the Will, solicitors usually supervise execution and provide the witnesses. During the pandemic we have strived for innovative ways to continue with this work; we have met clients in gardens, driveways and our office car park (which is undercover, but we have to take care not to annoy the pigeons!) The car bonnet has often replaced the table!
The Government are now passing some emergency legislation to allow Wills to be signed by video conferencing such as Skype, FaceTime and Zoom. This allows a Will to be signed by the person making it with the 2 witnesses present by video link, not present in person. All 3 people meet on video link and the person making the Will holds it up and ensures the camera can see it them sign it. The original Will is then passed to the first witness, either by courier or by post. All 3 then meet again by video link and the first witness then holds up the Will and ensures everyone can see them sign it. The process is then repeated a third time for the third witness. All video must be recorded and preserved.
Whilst this change is welcome, the process is rather cumbersome and we are finding we are still preferring to meet our clients in person, albeit at a social distance, and sign the Will altogether. The new legislation may however be good for someone in a remote location (a lighthouse?), or medically isolated in a place with no windows where witnesses could stand outside and have a clear line of sight to sign.
Just another thing changed by the pandemic.
Embarrassment in the Family Court
Family & Civil Partnership
I am shortly due to qualify as a solicitor in the Shentons family department and so I have my eye keenly on developments in the law. Technology has proved vital to the family courts continuing cases during the pandemic with virtual links for the parties to appear in court.
These developments are not without their pitfalls however, I recently read of a rather embarrassing situation. Having completed the hearing the Judge’s clerk took her laptop through to her private chamber but neglected to close the link through to the parties in the case. The Judge was overheard saying the mother was pretending to have a cough and was trying ‘every trick in the book’ to avoid answering difficult questions.
The Judge has now been removed from the case and this provides a cautionary tale for all court users who connect via video link!
We are excited to announce that Partner Chloe Jay has been shortlisted as ‘Solicitor of the Year’ at the Excellence awards of the Law Society of England and Wales.
Chloe heads the Crime Department at Shentons and has just returned to work after the birth of her second child.
She is one of only eight who have been shortlisted with other candidates coming from all types of firms, including very large City firms with global reach.
The nomination highlighted Chloe’s commitment to innovation and the impact she has made socially and commercially. Chloe represents Hampshire defence solicitors on the local Criminal Justice Board and has also been promoting law as a profession by giving talks to a local school as part of the Big Legal Lesson initiated by the Law Society. She, and our Patrick Hunter, were the only solicitors to do so nationally.
The nomination came from colleagues at Shentons and from the wider legal community, including Her Honour Judge Susan Evans QC (a judge at the Winchester Crown Court), the Assistant Police and Crime Commissioner Enzo Riglia and the Chief Constable, Olivia Pinkney.
We hope she wins but to be listed as one of the top eight solicitors for the year is a great achievement in itself!
Do you have a safe space?
Family & Civil Partnership
Shentons are supporting a campaign by Hampshire County Council to support victims of domestic violence.
If you aren't safe in your home because of violence, abuse or threatening behaviour, you can get help with a safe place to stay or support to stay in your home safely. We understand that due to self-isolation staying with family and friends might not be an option.
Help making your house safer
In many situations, Hampshire County Council can support you to remain in your own home by supplying and fitting a variety of security measures. Specialist support workers are also available to help ensure you can remain safely at home rather than having to move. Call the Hampshire Domestic Abuse Service Advice Line who will signpost you to the right service for your area.
Find a place in a refuge
You might be able to get safe housing and support in a refuge.
• Refuge services could still be an option for you. You can find out about available refuge places by calling the Hampshire Domestic Abuse Service Advice Line on 03300 165 112, asking another support service or the police to help you.
• Refuge services are still open and accepting referrals. There is guidance for refuges on how to provide support during the Covid-19 pandemic including for survivors and children who may need to self-isolate with them.
• You may be able to get free rail travel to take up a place in a refuge. Ask the Hampshire Domestic Abuse Service about this.
• There are some refuge options available to male victims of abuse. You can call the Hampshire Domestic Abuse Service, the You Trust or the Men’s Advice Line for help finding refuge or similar accommodation.
• Pets: many refuges are unable to accommodate pets. But there are specialist pet fostering services that can provide a solution. For more information please contact the Dogs Trust Freedom Project or Paws Protect.
Help is available from:
• Hampshire Domestic Abuse Service
Advice Line (provided by Stop Domestic Abuse) 03300 165 112 weekdays 9.30am-8pm
• YOU Trust, Dorset
Offers a service to support male victims and families with older boys who would not be able to access most refuge spaces, and people from LGBTQ+ and BAME communities.
Telephone: 0800 032 5204
• Men’s Advice Line
The Men’s Advice Line is a confidential helpline for male victims of domestic abuse and those supporting them. Telephone: 0808 801 0327
• Shelter provide free confidential housing information, support and legal advice on all housing and homelessness issues. They also have an emergency helpline: 0808 800 4444 Webchat https://england.shelter.org.uk/
Welcome to the first edition of
Lawtalk 2020. This is a special
edition celebrating Justice Week.
We wanted to celebrate the amazing work that we do here to achieve justice for our clients in all manner of different forms. Whether we are ensuring that someone has not been pressured by a family member in the making of their will, obtaining access for a father to his children or securing an innocent person’s release from prison; upholding people’s rights and the freedom to make their own choices is an integral part of a lawyer’s job.
In this edition you will read about some of our clients and the difficult situations in which they find themselves. Often they are facing one of the lowest points of their life; bereavement, divorce or even incarceration, and the legal side that goes along with it can be extremely distressing and difficult for them. Our job is to guide them through that process with compassion and try to achieve an outcome that is fair and right; in other words, to achieve ‘justice’ for them.
Justice Week is a joint initiative from the Law Society, Bar Council and Institute of Chartered Legal Executives, the aim is to promote the important of the justice system and the rule of law. Why is this needed? In recent times we have seen judges be declared the ‘enemies of the people’ and many cases are incorrectly summarised and reported by the Media. Such things have led to an erosion of faith in the justice system within the mind of the general public and to widespread misunderstanding. The Judiciary are not able to defend themselves as they are not able to comment on the cases over which they preside, likewise lawyers are often unable to correct details due to the confidentiality they owe their clients. It is vital that we understand the importance of the rule of law which protects our fundamental freedoms and allows us to enforce our rights when they are violated.
We hope the articles here will show how these principles operate in everyday life for everyday people.
Fighting for your Rights
Wills and Probate
Fighting for justice can take many forms and does not always
involve courtroom drama. In my 18 years working in law
I have been appointed to act as attorney for many people
who have a long-term illness or disability.
As attorney I try to actively engage the care home staff, social workers and independent advocates to try to achieve what my client wants; this is usually to be allowed to return home. Hospital staff are generally concerned with getting the person out of the hospital bed and the assumption then seems to be that the client will be taken to a nursing home for ‘respite care’ despite their clearly expressed intention to return home.
I am often fighting to remind the professionals of the client’s right to return home. The law says “people have the right to make decisions that others regard as unwise or eccentric. You cannot treat someone as lacking capacity for this reason. Everyone has their own values, beliefs and preferences which may not be the same as those of other people”. I remind them that someone’s continuous expression of a wish to return home has to be considered by medical staff, care staff and their social worker even if it is unrealistic. In fact, a Deprivation of Liberty Order must be sought if the situation is so unworkable that it would leave the person vulnerable or unsafe.
The risks of returning home can be assessed and care packages can be determined by the medical team, social worker and family input so that the person is safe. This may take more work but it is important to honour someone’s wish to return home if this is what they want.
Appointing a professional Attorney to fight your corner can be invaluable.
Property and Conveyancy
One of the strengths of having a
multidisciplinary firm is that we
can call on colleagues from other
departments to assist us rather
than have to send our clients to
another firm and incur further
The Property Team recently dealt with an elderly man who wished to enter into a mortgage and sell his home to a developer. The purpose appeared to be solely to release money to pay off his son’s debts.
As solicitors it is our duty to ensure that choices such as this are being made entirely of someone’s own free will and that there is no undue influence or pressure coming from a third party. It is also important to ensure that they have the full mental capacity to make this decision. If we did not ensure this, then others could challenge what took place, after the person’s death for example.
In this case we were able to call on a colleague from our Wills and Trusts team who also had experience in Land Law to meet with our client and check his mental capacity. We were satisfied that our client had the capacity to make important decisions concerning his finances and that there was no undue influence and this was genuinely what our client wished to do and we proceeded with the transaction.
Road Traffic Offences
Most people would agree with the two propositions…
1.The need to modernise a justice system
that can be out of touch with the fastpaced
realities of the digital age AND
2. That participants in the justice system, be it witnesses, victims, police officers, magistrates and defendants should be able to participate without having to travel hundreds of miles to achieve justice.
But is online justice the answer?
As defence solicitors, our job as advocates in the Magistrates Court is trying to persuade Magistrates around to our point of view. We decry decisions that are wrong or unjust and we can appeal to a higher court. Criticisms that Magistrates have faced over the years is that they are drawn from too narrow a background and they are not representative of the communities to which they deliver justice.
There may be some merit in this point, however, in my opinion, the answer is not to be found in closing Magistrates Courts so that everybody has to travel for miles to get to a Court, nor is it going to be solved by turning summary justice into a process driven by online algorithms.
The Magistrates’ ability to use their discretion in deciding a defendant’s fate can sometimes work in a defendant’s favour and I am yet to be convinced that the most technologically advanced online systems can replicate this intrinsically human factor in the justice system.
The Magistrates’ discretion was utmost in my mind when I recently argued a case of exceptional hardship. My client had never been to court before but they were faced with losing their licence as a result of totting up speeding points over 3 years. The client, however, lived in a rural location and visited their elderly father every day (as he was suffering from dementia,) in another rural location. Buses were infrequent and taxis prohibitively expensive. The daily visits meant that the elderly father could stay in their own home and the client could give the carer a break. The carer did not drive and for differing reasons, no-else in the family could visit every day.
We demonstrated to the Court that the loss of the licence would be of exceptional hardship to the client’s father as he would be effectively house bound and likely to end up in permanent residential care without the daily visits. The Magistrates used their discretion and the client kept their license knowing that any further speeding or road traffic offences would result in an immediate ban.
Chloe Jay and Patrick Hunter
have been invited in to deliver
the ‘Big Legal Lesson’ at
St. Swithuns’ school in
Winchester. The project is
organised by Young Citizens
and runs as a part of justice
week to promote the biggest
public legal education event of
its kind. Children all over the
country will be learning about
justice and the importance
of the rule of law. Chloe Jay
says ‘we wanted to offer our
practical experience to bring
the subject alive for people.’
Partner Elisabeth Pollard was invited to speak on inheritance tax at a local event held at Hotel du Vin, Winchester. She is pictured here with two independent financial advisors Victoria Toan and Mark Holmes of Vision Financial Planning having delivered her speech!
Family and Civil Partnerships
A recent survey by the Legal Services
Board found that the lower your
level of education and intellectual
capability, the more likely you are to
struggle to handle a legal issue and
in particular the less likely you are
to have access to justice or feel you
have access to justice (Legal Needs
of Individuals in England and Wales
Our family department experience this all too frequently when dealing with clients who have learning difficulties and/ or mental health problems. Rachael Cole says, “Clients often feel they have been written off as a parent because children’s services assume they are incapable of looking after a child, despite government guidance making it clear that people with learning disabilities can be good parents and should be supported to care for their children. It has been highlighted by the Court that having a learning disability does not mean that a person cannot learn new skills”.
Rachael speaks of a recent case involving such a client whose parenting assessment was initially negative. Rachael pushed for an independent assessment to be undertaken to focus on the support available to the client from her family, particularly her mother with whom she had moved back to live with. Rachael was pleased to find that the result was positive. “The client simply did not have the ability to fight her own corner, it was my job to do that for her.” She will hopefully now be able to care for her children as opposed to losing all contact via the adoption process, and most importantly, the children will have the opportunity of remaining within their birth family.
In another case, Rachael and the team had to fight to obtain legal aid for a client with learning difficulties who was denied funding on the basis that he could ask a family member or friend to assist him with the legal proceedings. The team successfully appealed this decision pointing out that there was no one in his life who could fulfil this role and that it was essential he had the assistance of a qualified professional or he would be put at a significant disadvantage. Rachael says, “It can be incredibly daunting and stressful for anyone to face legal proceedings alone, but this can be almost impossible if you struggle to read and understand the lengthy and complex case papers. Often people do not even engage in legal proceedings for this reason, which can result in adverse Court Orders being made against them. This can have very serious consequences.”
Shentons have always supported the legal aid scheme and the concept of access to justice for everyone.
Abigail McCarthy answers your questions on domestic abuse
Family and Civil Partnerships
What can a solicitor do to protect me from my abusive partner?
We are often contacted by our local
refuge to assist vulnerable people who
have fled domestic abuse. Typically, we
will invite them into our office, where
we can then apply to the court for an
urgent order to prevent the perpetrator
contacting them and subjecting them
to any further abuse. If this order is
breached, the perpetrator would have
committed a criminal offence and, as
such, could be arrested, therefore giving
our clients a level of protection they can
rely upon in an emergency.
In some cases, we can obtain orders to prevent the perpetrator attending or returning to their address. If they do not comply, an application can be made to the court for their committal to prison.
I can’t bear to face my ex in court, is there anything that can be done about this?
Yes. We can apply for special measures to assist you. This can involve several different options, including separate entrances to the court building, separate waiting areas and either appearing from behind a screen or via telephone conferencing.
Can I prevent my ex from knowing where I am living with the children?
This would depend on the gravity of the case but yes, in cases of serious violence or threats, we are able to conduct proceedings on your behalf without disclosing your whereabouts to your ex-partner. You would still need to attend court at certain points but, again, we could apply for special measures to keep you from seeing each other in the court building.
A case of Inheritance Tax
Wills and Probate
I was instructed by a son following the
death of his father. The father and son
were both farmers who ran their farm
together. However, the farm in its
entirety was owned solely by the
father. The farm consisted of several
farm buildings and two farmhouses.
On the face of it, it appeared that the whole of the farm was owned by the father solely at the date of his death. This meant that the whole value of the farm would be subject to inheritance tax at 40% because the more usual agricultural and business reliefs were not available to cover the whole of the farm. For my client this would be an astronomical bill that would almost certainly endanger the future of the farm.
It is my role to fully explore the history of a situation and establish exactly what has taken place. After further discussions it became apparent that the father and son had previously owned a farm together; albeit approximately 27 years earlier. When the jointly owned farm had been sold, the new farm was bought in the father’s sole name for reasons that were unclear. It was evident that the son’s half of the jointly owned farm had been used towards the purchase of the current farm. Further discussions with the farm’s accountants and visiting the father’s home allowed the relevant accounting evidence to be found which went back to the running of the previous farm and to the point of its sale.
I was then able to demonstrate to the satisfaction of HM Revenue & Customs that not all of the farm was actually owned by the father at the date of his death but was held upon a Bare Trust for himself and his son.
Applying various other rules this then meant that the farm was able to pass to the son without any inheritance tax needing to be paid.
A Modern Epidemic – Running County Lines
Wills and Probate
Young children are being exploited by
inner-city gangs to run “county lines”.
Drug gangs are coercing young children
to hold a mobile phone (the ‘line’) and
then to supply class A drugs to the users
calling the number. The children are
normally moved from their home to sell
drugs in rural or coastal towns in different
counties. They are often placed in the
home of drug users and forced to live
there until the drugs are sold. The
attraction is that these areas are usually
less intensely policed and if something
does go wrong it is the child who is
arrested not a member of the gang. They
focus on young, suggestible, vulnerable
children who can be manipulated to carry
out the work. These children then find
themselves enslaved to the gang with no
real means of escape.
In my role as a solicitor I am frequently
called to the police station to represent
such a young person who has been
arrested for drug dealing or related
crimes. It is my job to try to identify
victims of modern slavery and determine
whether they may be able to rely on
a defence to the allegation under the
Modern Slavery Act. I have to ensure
that a referral has been made to the
National Crime Agency who make the
final determination as to whether a
child is a victim of exploitation.
If a conclusive decision is made this gives me the tools to challenge the prosecution as to whether it is in the interests of justice for the child to be criminalised. The Crown Prosecution Service (CPS) have guidance stating that young children who have committed non-violent offences, as a direct result of exploitation, should not be prosecuted. It recognises that they are victims themselves. Even if the CPS does not agree to drop the prosecution, we can still run the defence at trial. For me personally, a conclusive grounds decision should mean that the child is treated as a victim, and they should not be prosecuted. Justice cannot be served by a prosecution for something a child has done under exploitation and coercion. Thankfully our success rate for this is very high and we have seen many cases discontinued.
If you need advice regarding your child being a possible victim of this, please call us.