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When to instruct a Guernsey Advocate
There are many different circumstances in which you will wish to consult and retain (i.e. instruct) a Guernsey Advocate, but these can be reduced to three broad categories: (a) non-contentious matters, i.e. where there is no argument, but some legal task must be carried out; (b) civil disputes and (c) criminal proceedings. We look briefly at each in turn.
Non-contentious matters
Examples of non-contentious matters range from buying a house or making a will, to creating a company, or seeking a guardianship order for an elderly relative. What all these things have in common is the special importance attached by the community to what you are proposing to do. Because of that importance, certain formalities are required, which usually mean you will need to instruct an Advocate. Generally speaking there will be no argument or contest; merely the requirement to complete the required formalities to achieve whatever result is intended. For example, an application for a guardianship order is rarely contested but, because of its importance for the person concerned, the law requires a number of steps to be taken in order to ensure that orders are only made when they properly should be. The sale and purchase of land involves such a substantial investment that extra care and formalities are required over and above, say, the sale and purchase of a piece of jewellery. For all these non-contentious matters you will simply instruct your Advocate when the need arises.
Civil disputes
The next typical set of circumstances in which you will want to consult an Advocate is where you have a civil dispute, i.e. a contentious matter. Again this can range from an injury or accident to an argument over a trade debt of just a few hundred pounds to a very substantial contractual dispute involving many thousands of pounds. Another possibility is that you have a complaint concerning how you have been treated by a public authority; e.g. a States Department. It is more difficult to know when precisely to go to your Advocate in this context. In an ideal world we would all settle our differences fairly and reasonably, doing the least possible harm to each other’s interests consistent with our own rights and expectations. Unfortunately we do not live in an ideal world. If you are confident that you know what your rights and obligations are in any given situation, or if the matter is not of the greatest significance, then you may well be able to resolve matters for yourself. Common sense will very often be your guide. If you are in doubt as to your rights and obligations then it is a good idea to consult an Advocate. One of the best uses that can be made of an Advocate is to seek advice at an early stage in a dispute, in order to obtain a neutral view of the merits (i.e. the strengths and weaknesses) of your position, the nature of your rights and obligations and how best to proceed to resolve the dispute. Half an hour with an Advocate early on may save considerable grief and expense later. This is one of the most effective ways of all in which to use an Advocate and is very cost effective also. It can sometimes be the legal equivalent of a stitch in time saving nine. For example, you may have a dispute over a contract, it might be a building contract, the purchase of a car or an employment dispute. You can discuss with your Advocate the various options that you have and the possible consequences. A letter from your Advocate might achieve what you cannot alone; equally there will be times when you will not want the other party to know that you have consulted a lawyer. Here the Advocate can draft a letter for you to send or simply advise you as to how to proceed.
Family disputes
You will very often wish to consult an advocate if your marriage breaks down or any other serious issue arises in respect of family relationships or children. Included here would also be care proceedings or anything else concerning family rights and responsibilities which is of concern to you. This does not mean that a Court will be the best place in which to resolve such issues. There is increasing use of alternative means such as mediation. Parties to family disputes above all are encouraged to settle their differences as amicably as may be possible in order to save costs and emotional harm to themselves, their former partners and their children.
Criminal proceedings
A society creates all manner of rules for its members. When those rules are particularly important for the good government of a community, they have to be enforced. Societies enforce rules by creating penalties for their breach. This is the essence of criminal law; a rule made by society which must be respected by the member of that society or else face a penalty. Criminal offences range from very modest offences which are not truly criminal in the popular sense of the word (the parking ticket is the best example), to crimes of the utmost severity, such as murder. Typically, the more modest the offence, the less likely it is that any particular state of mind is required at the material time. It is enough if the facts comprising the offence are proved by the prosecution. By contrast, the more serious an offence is, the more likely it will have to be proved that what was done was intended. In all criminal proceedings it is for the prosecutor (the Police in the Magistrates’ Court and the Law Officers of the Crown in the Royal Court) to prove their case beyond a reasonable doubt or, in other words, so that the Court is sure of the guilt of the defendant. Whether you need an Advocate or not for a criminal matter very much depends on the seriousness of the case. It is unlikely that you will want an Advocate for trivial matters where the worst you face is a modest financial penalty. Again common sense will guide you. If in doubt consult an Advocate. There is often rather more to a criminal offence than you might expect; for example theft is (a) the dishonest appropriation of (b) property (c) belonging to another with (d) the intention of (e) permanently depriving the other of it. There are five quite separate elements to be established before the crime of theft is made out. An Advocate will help you to understand whether you have committed an offence or not, whether you have a defence and how to deal with the matter generally. An Advocate can assist you in Court, whether to contest the summons or charge in a trial or to make a plea in mitigation of sentence on your behalf. If you are in Police or Customs custody you have a right to consult an Advocate. You have a great many rights which are set out in the Police Powers and Criminal Evidence (Bailiwick of Guernsey) Law 2003 and Codes of Conduct made under that Law. The Codes are available to you upon request.
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