by TheJusticeofthePeace @ 19. Nov. 2010. – 05:19:12
I retired from the magistracy in 2015 after 17 years mainly as a presiding justice
- A MAGISTRATE`S DIARIES
- United Kingdom
- My current blog can be accessed at https://thejusticeofthepeaceblog.blogspot.com/
ONE YEAR OLD TODAY
DESIGNATED PUBLIC PLACE ORDER
by TheJusticeofthePeace @ 17.
Nov. 2010. – 18:52:16
It can be taken as said that the rise in alcohol consumption especially by young people is directly related to breaches of the peace the prevention of which was the prime purpose of the first police force. Various measures have been taken in the last ten years or so to curb the habit and the resulting violence. They have generally concentrated on consequences for the individual convicted or suspected of alcohol related criminality or anti social behaviour. In other words the demand side of the equation has been the focus of attention. Control of the supply side; namely sales especially to young people by off license premises large and small, has generally been ineffective. I have posted here previously on this topic 14th July &1st September and commented at other times.
It strikes me that by far the most effective use of the law to reduce this blight on our town and city centres especially at weekends is the Designated Public Place Order (DPPO). The usual penalty for contravention is a Fixed Penalty Notice. A DPPO does not make it a criminal offence to consume alcohol within the designated area, but an offence is committed if an individual refuses to comply with a request to stop drinking by a police officer or refuses a FPN. Provided such areas are clearly signed and notice is given in local media the sanction for a breach is swift and sure; do as instructed ie stop drinking or be arrested and charged with a criminal offence. There is no need to investigate an individual`s history as there is with an ASBO or Drinking Banning Order. It reduces alcohol sales to under age drinkers because they would have to travel in order to quaff their illegally supplied booze provided the area was wide enough; an important consideration to prevent displacement.
London Transport introduced a similar ban some two year ago on buses and tubes. It hasn`t made life a joy on late night transport but according to friends it is certainly less of a jungle. That example should be followed in more town centres.
ASSAULT IN A DOMESTIC CONTEXT…..NOT A PRETTY SIGHT
by TheJusticeofthePeace @ 15.
Nov. 2010. – 11:13:30
Intimate relationships are just that…….intimate……..definition; closely personal generally of a sexual nature. It took a long time for the law and its various agencies to become involved when these relationships took a violent turn precisely because of the unique circumstances surrounding any accusations of violence associated with that relationship. A glance at Wikipedia offers this information.
Droit de seigneur, "the lord's right", often conflated with the Latin phrase "Jus primae noctis"), is a term now popularly used to describe an alleged legal right allowing the lord of an estate to take the virginity of his serfs` maiden daughters. Little or no historical evidence has been unearthed from the Middle Ages to support the idea that it ever actually existed.
Since it is accepted that history is written by the victors in any conquest it is not unlikely that all powerful newly ennobled French henchman of the Conqueror would seek to impose their authority in any form they wished. Be that as it may, rape always has been and to a certain extent probably will be a means of imposing male power over women in the most basic of ways. It is and has been used on a massive scale as an instrument of policy eg by the Russians in Berlin April/May 1945; Congo 2010. It is not an offence about which magistrates have any greater knowledge per se than any other lay people except that as for all offenders the accused rapist will face justice first of all in the magistrates` court. However at the lowest level of [usually] male violence against [usually] a female with whom there is or was an intimate relationship magistrates are well versed to comment. Although there is no such designated offence in law it is known as domestic violence or assault in a domestic context.
For decades the standard police response to accusations of assault perpetrated on a female by her male intimate partner/husband/boyfriend was referred to somewhat disparagingly as a “domestic” and unless resulting in serious injury the offender was rarely taken through the courts. However some four or five years ago the Metropolitan Police in a change of policy announced that even when a complainant withdrew her accusation all cases of suspected domestic assault would be pursued in the normal manner if the evidence were available. This resulted in vastly more offenders being convicted. It also resulted in increased difficulties for prosecutors and courts when complainants withdrew their original statements based on which charges had been laid. Sometimes these withdrawals are taking place on the day of trial. My post on November 11th detailed such a case. At such times emotions including fear, love and hate are such a fateful mix that justice is clearly seen not to have been done.
In the recent case of a mother of four at Mold Crown Court whose husband was accused of raping her, her subsequent statement of withdrawal, whether written or verbal did not prevent the CPS from continuing with the prosecution so she then retracted her accusation saying she had lied and that she had not been raped. As a result her husband who had originally pleaded guilty was discharged and she was jailed for perverting the course of justice. This is or was subject to appeal.
There are those with sharp axes to grind who offer spurious statistics regarding the failure of police and courts to offer justice to rape victims. However the case above described relates in microcosm to what is happening every week in many magistrates` courts throughout the country. When judges and J.P.s have to peep through the bedroom keyhole to deliver justice it is often not a pretty sight.
ADDENDUM 24th Nov 2010
In the above case in which a rape complainant was imprisoned for attempting to pervert the course of justice Lord Judge with two colleagues has ordered her release from jail and reduced her sentence to a two year supervision order with a community requirement.
EQUAL BEFORE THE LAW BUT APPARANTLY NOT PAUL GASCOIGNE
by TheJusticeofthePeace @ 14.
Nov. 2010. – 12:01:40
Truly a victim of his own success Paul Gascoigne a footballer in the mould of that late great drunk Georgie Best was bailed to appear for sentencing on Thursday this week having previously pleaded guilty to his umpteenth charge of drink driving at Newcastle Magistrates` Court in front of District Judge Stephan Earl. There is no need here to list the previous criminal history of Gascoigne except to say it is substantial and is much related to his substance abuse. Instead of keeping to an arranged appointment to be interviewed by local probation officers he breached his bail by voluntarily admitting himself [not for the first time] to a private clinic for addicts. The good judge said that the defendant Gascoigne did not deserve to be treated differently from anyone else facing punishment for the same offence and then promptly treated him differently. Instead of having a warrant issued for his arrest and having him brought to Newcastle ASAP he instructed the probation service local to the clinic to interview him for a pre sentence report; an action that Newcastle probation officers were unable to do because the offender had absconded.
In my opinion justice was not served. When high profile individuals are given preferential treatment and preferential treatment was what Gascoigne received notwithstanding denials, further evidence of declining standards in public officialdom is revealed. One well known commentator remarking on the recent decision that the three former M.P.s accused of theft must face trial at Crown Court and not in Parliament was that the public wouldn`t stand for any other decision. It should not require fear of public comment to ensure that everyone in this country is equal before the law.
"P" PLATES CAN P*** OFF
by TheJusticeofthePeace @ 13.
Nov. 2010. – 12:58:11
One would have thought that a
representative body faced with the most radical shake up of its members`
practices in a generation…..even in two generations……..would find it logical, expedient
and productive to concentrate all its efforts and limited resources to hammer
out its message to the public and opinion formers. One would have thought so
but when the organisation in question is the Magistrates` Association it
appears that logic, expediency and productivity go out of the window.
There are pressing matters and
pressing arguments to concentrate minds with regard to the Coalition`s
intentions to reduce prisoner numbers, close prisons and divert many thousands
of addicted and mentally ill offenders to non existing [at present] community
institutions staffed by non existing [at present] personnel paid for with non
existing [at present] resources. Thus there are many directions in which the
M.A. could be firing its short supply of arrows and still find a useful target.
But that would too obvious. Instead, according to a report today
in The Telegraph, the M.A. has proposed that newly qualified drivers should be
legally required to have on their cars front and back a green P plate to warn
other road users of their inexperience. This story for emphasis is subbed as
policy of the 28,000 member M.A. I have searched high and low in the impossibly
difficult to navigate website of the organisation and found no mention of this
policy. One would have thought that a document sent as official policy to
Philip Hammond, the Transport Secretary would have at least been noted in the
minutes of the latest meeting of the association`s Road Traffic Committee on 7th October. One
would have thought wrongly.
One would have again thought
that such a radical proposal from those who represent us, the magistrates who
sit in judgement of such matters, would have been discussed with others who
might have some input learned from experience. Perhaps the M.A. has had talks
with driving school representatives, or those involved in road safety matters,
or motoring organisations, or the police and Crown Prosecution Service who
would have to detect and prosecute those who flouted this proposed new
legislation. From the report we are told the A.A. gives it short shrift.
The A.G.M. of the Magistrates
Association takes place later this month. It will be attended by a couple of
hundred at most. And that is the way the incumbents prefer to keep its
meetings……close confined. The minutes of the last A.G.M. will not be available
until the impending get together. That is another way of ensuring minimum
criticism. There is no good reason on this Earth for these minutes not being
available in advance on the labyrinthine website recently re vamped at a cost
of perhaps £50,000. The 2008 minutes have no information of members in
attendance. Obviously each would have had to sign in. Why should the names of
the attendees not be added on a separate page[s]? At least the numbers
attending and voting should be published without web site obstacles which make
navigation nothing short of a joke impeding efforts to seek answers. Why is
there no facility for distance voting?
When many of an organisation`s
functions are carried out in a less than transparent manner errors of judgement
will be made and re-made and made again. Irrespective of the soundness or
otherwise of the proposal described above to have made it with apparently
little or no consultation and been singularly rebuffed by the Minister of the
department involved is sheer crassness. I have said it before and I say it
again……..in its current form the Magistrates` Association is not fit for
purpose!
UNPAID FINES
by TheJusticeofthePeace @ 12.
Nov. 2010. – 08:12:09
I`ve posted in the past on unpaid fines which currently total around £500 million and rising. Routine pronouncements from the bench when issuing fines, costs etc include stating that a collection order will be made if the fine is not paid according to the agreed schedule. That means that without further formality bailiffs can be given instructions of seizure. All very well in theory but different in practice.
VACANT and VACATED
by TheJusticeofthePeace @ 11.
Nov. 2010. – 12:56:44
A full day`s sitting last month
did not seem to hold any surprises when I consulted the court lists at 9.30am.
There were two trials to be prosecuted by the CPS scheduled for the morning and
one for the afternoon. Apart from extremely simple matters such as no insurance
or some non CPS matters very few trials are listed for less than half a day.
Having two trials listed that morning each an allegation of assault but one in
a domestic context was normal. The official policy it seems is that with a high
rate of cracked or non effective trials the only way to improve efficiency is
to double list. In blunt terms if everyone appears for both matters one of them
is likely to be adjourned or to go part heard…….rough justice for a defendant,
his/her lawyer and witnesses if any.
On that day priority was given
to the DV case and so from 10.00am after the usual preliminaries and request
from the prosecutor to have a very short adjournment with the Officer in the
Case we heard a sorry tale of why he could not proceed. At that moment the
defendant, a grim faced well built male of twenty seven, seemed unable to
suppress the hint of smile. We were told of a history of statements made by the
complainant at the scene, repeated at the police station a day later, withdrawn
a month after that, the withdrawal itself withdrawn four weeks prior to trial
and now a refusal to appear even although she had briefly attended court at
9.30am. The prosecutor announced formally that he was offering no evidence and
accordingly we dismissed the case. During a brief recess we were told that a
previous bench had found the defendant not guilty of a breach of his bail
condition of non contact with the complainant. The strong sweet black Italian
coffee didn`t taste as good as usual.
The second case of assault was
of the usual kind insofar as there is a “usual” kind. An argument in a pub
leads to an altercation outside and the loser gets a bloody nose whilst the
defendant is in the dock unrepresented after being refused legal aid on income
grounds which means he earns more than about £21K. He was forty four, had
dressed for the occasion, well cut suit and white shirt and tie. He seemed to
be comfortable in such clothing and judging by his address lived in a smart
part of town. I often wonder why those who might have money for cars, holidays
and restaurants don`t spend some of it on a lawyer when they are before the
court especially when they are of good character. This chap, when the crunch
came and he was asked if his plea was still not guilty, decided that at this
the third listing he would change his plea.
So by 11.15am our official
morning list was over. We did manage to employ ourselves undertaking the
Queen`s business until about 12.30pm by taking work from the remand court which
is so over burdened by design that without other courts` availability due
process would be impossible.
And so at 2.00pm with two new
colleagues we said our “Good afternoons” to the few assembled for my third
attempt at a trial that day. Arthur Nixon, Nick Arthur or Arthur Nicholas aged
37 was on our list as having assaulted a male and a female, his wife`s brother
and the brother`s girl friend six months previously. CPS prosecutor rose to
tell us that nobody has appeared. Both the defendant and the wife`s brother
were apparently serving time for Her Majesty and the female was not
contactable. When enquiry was made as to why all this was not taken into
account by the CPS during normal review prior to trial and information conveyed
to the court we were not surprised to be told that reduced staff availability
had led to a lowering of quality control. He shrugged, our L/A sighed and my
two colleagues who had been rostered only for the afternoon moaned audibly when
we were told that there was another bench taking remand court`s leftovers. We
were released about 2.20pm.
Such is the reality of why a
court does not always reach 80% utilisation demanded by the Minister of
Justice.
BENEFIT FRAUD: CROWN COURT OR MAGISTRATES` COURT?
by TheJusticeofthePeace @ 10.
Nov. 2010. – 16:36:23
Benefit Fraud is an either way
offence with a maximum sentence at Magistrates` Courts of six months custody
and/or £5,000 fine. Tried on indictment under various Acts at the Crown Court
the maximum sentence is ten years. Until about a couple of years ago magistrates`
benches were usually advised to decline jurisdiction if the sum involved was
over £20,000. Indeed as recently as October last year at Hendon Magistrates`
Court in London a case was sent to the Crown Court when the sum
involved was £35,000. At my own court within that self same period of one year
we have been advised by prosecutors on behalf of the Secretary of State that
Magistrates can accept cases where up to £60,000 is the alleged sum involved.
Our L/As appear to have received similar advice.
It was therefore interesting to
read the case of a mother who was sentenced after trial to three months custody
[suspended] at Crown Court when
the amount obtained was less than £20,000. Not having been there I would hazard
a guess that it would seem likely that this defendant elected trial by jury.
Defendants take such legal advice for one reason; the belief or hope that they
would be more likely to be found not guilty. I do not think they fully consider
that if found guilty they might receive a greater sentence than at the lower court.
If that were the case and being unaware of all the facts I would stick my neck
out and suggest that her sentence was indeed probably more severe than that
which would have been handed down at least in my court.
Because two cases are perhaps
similar but not the same I suppose it is difficult to analyse the difference in
sentences for similar cases in either way offences such as above. I have a
vague recollection of reading somewhere that it is thought that in comparisons
such as I have described judges do tend to impose heavier sentences than are
imposed in Magistrates` Courts. If that were so would defendants follow the
maths or would they would they hope for acquittal? And of course the temptation
of legal aid at Crown Court might be attractive to some.
SQUATTERS` RIGHTS/ SQUATTERS` WRONGS
by TheJusticeofthePeace @ 08.
Nov. 2010. – 16:33:57
For anybody who parks a car in a dodgy neighbourhood there is always the underlying fear it could be vandalised or worse……stolen. Vehicle theft is indeed a serious criminal offence. If it were not so considered eg if one had to identify the thief and take out a summons through the civil courts system cars would be disappearing non stop. Fear of discovery and deterrence certainly have a part to play in keeping the lid on any acquisitive criminality.
How different it is when one is considering theft of one`s fixed property; ie house or commercial premises. Landlords know of the possible problems when a property is vacant between lets or for some other reason. And property owner Connan Gupta now knows more than most………..to his cost.
Vacating his house whilst it was being re-furbished he returned to find it occupied by squatters. Squatters might be the accepted term for such people but I prefer the description property thieves indulging in theft of property and, according to the Mail online report, excusing their actions by spouting Marxist rhetoric of the basest kind.
That this is not a criminal offence is a downright scandal. With the prospect of Housing Benefit changes around the corner increasing homelessness the Coalition must rectify this sorry state of affairs ASAP.
BLOGGERS UNITED IN FREE SPEECH
by TheJusticeofthePeace @ 08.
Nov. 2010. – 14:14:37
There is democracy within an organisation and there is the appearance of democracy. After having listened to an interview this morning by John Humphries on “Today” with a very senior Chinese government official who when he asserted that there is no single pattern of democracy and that western ideas of such are not the only forms of the Athenian innovation I could not but think of the Magistrates` Association and its version of the “D” word.
Recent statements have indicated that the M.A. is considering changes in its structure to render it more representative of those it purports to represent. Perhaps it will consider a change along the lines of ridding us of the outmoded branch system and make benches the unit of organisation; a change I have long advocated and which my own branch has soundly ignored without debate. Another innovation would be using cyberspace in its many facets to gather in opinion from a wider constituency. However despite pleadings from Fitzroy Square it cannot and should not try to control individual magistrates from speaking out on their own behalf whether anonymously or not when they make it clear that their opinions are those of themselves as individuals and not representative of anyone or any organisation. The debate in the last few weeks to keep open courts threatened with closure has been led by individual magistrates and judges far more effectively in their local press than by the M.A. pontificating from on high. Of course J.P.s run the risk of drawing fire from the Ministry of Justice or one of its associated bodies if they stray too far into certain areas. From my own experiences of professional bodies negotiating with government departments the negotiators often begin to act, talk and behave like the civil servants with whom they`re dealing to the detriment of the cause they are supposed to be espousing.
The long established magistrate blogger Bystander broadcast on 5 Live last week under his own name in a debate with Louise Casey on the subject of a defendant`s right to choose in either way matters touching on whether all or some E/W matters should be abolished and/or whether the right to choose mode of trial should be abolished for defendants. He made it perfectly clear he was speaking for nobody but himself. No doubt he was selected because of his high public profile. Any reader here will know that I am firmly of the opposing view and that the right to choose is an anachronism which could and should be jettisoned from our trial system with no resulting reduction in the quality of justice from a bench of three cf a jury chosen at random.
However the M.A. cannot and should not seek to stifle individual opinion. Only when it becomes truly a representative body for Justices of the Peace will individuals consider that there is no need for them to make an individual contribution. Until then…………………………
LOCAL COURTS AND LOCAL FOIBLES
by TheJusticeofthePeace @ 08.
Nov. 2010. – 09:27:52
Legal advisors like all highly qualified skilled workers practise their profession in their own idiosyncratic manner within the limits of their expertise. Generally speaking I hold them in high regard. They have to cope with many hundreds of individuals from varied backgrounds with whom they might in the fullness of years strike up a working relationship built on mutual respect and understanding. They have to cope in the main with chairmen who talk over much or behave as if they were a latter day Judge Deed. They have to carry along and support those who wish to involve themselves as little as possible in the running of their court and whose ability in the retiring room perhaps leaves something to be desired. And it is in the retiring room that problems can occur.
The appeal mentioned above was last week. But it immediately reminded me of a situation during the winter when the building`s ancient heating system finally died. There were the three of us in a cold retiring room one male and two females my lady colleagues being sensible enough to have worn coats to court that morning and now in the confines of the retiring room they had put them round their shoulders in an attempt to insulate themselves against the low temperature which would have had paid workers in the streets shouting it was against their human rights to work at what seemed like 32*F. We had a guilty plea on a class A possession and were considering her sentence. Maxine was a well spoken mid twenties heroin addict long since fallen from grace who had last been in our presence for the same offence when she had been convicted five months previously. We therefore did not require any further information from probation other than that she had so far been attending all appointments for her six month drug rehabilitation programme contained within a supervision order. My colleagues were of the opinion that a similar new six month DRR would be onerous enough and relatively heavier than the preceding sentence. I maintained that an element of punishment should be incorporated in the sentence eg curfew to indicate that similar repeat offending in such short a time frame was unacceptable. At this point our very able L/A attended having waited the instructed ten minutes requested by our chairman who was now visibly shivering. Our sentencing discussion became quite heated but positions were entrenched and the majority carried the day as it always must.
Later that day when we were alone discussing that sentence the L/A made it quite clear to me that he considered that my colleagues were incorrect insofar as a structured sentencing approach should not have considered that in effect an increased DRR was more onerous and therefore constituted an additional punishment element that I had criticised as being lacking. But, he was quick to point out, it was a lawful disposal and it was not for him to comment further.
I had occasion last year to ask a newly appointed L/A who casually sat with us as we opened our discussion after a trial and with whom none of us had ever previously officiated to leave us and return when we rang for her. She replied that in her previous post it was commonplace for L/As to sit in at such times and contribute when required or requested. So it appears that in certain circumstances magistrates` courts are still “local” with local practices and local foibles.
Roll on 2012 when many court amalgamations will have been implemented and I`m sure there will be many more such scenarios of, “that`s the way we`ve been doing this for years”.
JUSTICE BY PEERS: BY MAGISTRATES NOT LORDS
by TheJusticeofthePeace @ 07.
Nov. 2010. – 10:46:50
It`s called the freedom of the back benches. What it means is that for whatever reason an M.P. finds him or herself in the back stalls instead of the front row whether by demotion or as in the case of Jack Straw his party losing power s/he can now speak as s/he feels fit as opposed to mouthing the claptrap that office sometimes demands. That in itself is a blight on our system of government when the general realisation is that one cannot expect our masters to speak the whole truth even some of the time and for the rest of the time the story of Hansel and Gretel would often be more accurate.
H o w e v e r…….Jack Straw, truly a man for all seasons, and most recently Justice Secretary, in a recent interview with his local constituency newspaper has waded into the debate……..long overdue, of defendants in either way offences having the power to choose whether to be tried by three magistrates or a District Judge at a magistrates` court or by a judge and jury in a crown court. Almost every week there is published a case of a defendant electing crown court trial for a charge of theft to the value of only a few pounds or in a case at Kingston a couple of years ago a charge of theft of a single solitary banana. That was concluded with “guilty” in twenty minutes as I recall. All my colleagues know the feeling………low value theft over which of course the bench accepts jurisdiction and then the defendant`s anxious glance to his lawyer when he is asked which court should try him before he chooses “crown court”. Mr Straw, hardly over supportive of J.P.s when he had power to be, when discussing proposals thrown out by the House of Lords,is quoted as saying “they did not trust magistrates to conduct fair trials”.
Many lawyers including the respected “Obiter” who occasionally comments here opine that an Englishman…let`s call him a British citizen………has a fundamental right to be tried by his peers. Are not three magistrates his peers……?
TOO MUCH PRE TRIAL ARGUMENT
by TheJusticeofthePeace @ 06.
Nov. 2010. – 12:10:57
"Let`s Get on With It" was the title of the best training session I`ve ever attended. It was conducted by our District Judge some years ago prior to my becoming a chairman and as the title suggests its theme was to ensure that any sitting produced maximum progress in the matter before the bench. Adjournments were to be considered a last resort. As a newbie J.P. over a decade ago with little experience and the expectation that the occupants of the middle chair were fonts of all knowledge, at least knowledge in excess of mine, I was surprised how often the bench led by the chairman was swayed by unconvincing legal argument to adjourn whether from CPS or defence. Another aspect of the training session was the insistence by our DJ that we each had powers identical to his. Now this statement of our position had been mentioned at various times after I had been appointed but without any great emphasis the result being that after the training session I felt liberated and that awareness has assisted my ability as an approved chairman. It has also allowed me to answer various lawyers whose respect for the bench seemed perhaps lower than it might have been by using a phrase I heard as a winger from an elder and much esteemed colleague, "This is a Magistrates` court and the bench will decide, Mr [Ms]....."
Early this year Dave, a nineteen year old, was on trial accused of assaulting by beating an 87 year old pensioner. In particular the complainant had lost a tooth during the alleged assault. Police officers, complainant and defendant were present. Prior to his plea the CPS prosecutor made an application to adduce a statement from the complainant`s dentist taken a day after the alleged assault in which he described the injuries examined after the incident and in a separate paragraph also wrote his opinion of the likely cause. On being questioned by the bench he made it quite clear that he could not proceed without the full statement. Both lawyers agreed that this latter paragraph was extremely prejudicial to the defence. Although the incident had taken place five months previously the dentist`s statement had been served on the defence only eight days before the trial and returned to the CPS on the seventh day; tardy but within the rules.
Not surprisingly defence counsel wanted the dentist to be summonsed to be cross examined on his second paragraph; his opinion as to cause of injuries. The prosecutor was adamant that without the complete statement being exhibited his case could not continue. At this late date of course he could not be called so defence applied for an adjournment and for the trial to be vacated. CPS objected and wished to go ahead even part heard. With "Let`s get on with it" in mind we retired to discuss. We returned having decided to reject the application to adjourn and to disallow the statement`s being adduced. There was silence in court for a full sixty seconds while the lawyers conferred in hushed tones. A joint application was made for a further ten minutes adjournment. At this point a cup of hot strong sweet Italian black coffee could be tasted from twenty yards distance and we retired.
On our return we were told that the CPS contrary to their previous position would now be able to proceed without the damning opinion of the second paragraph. Unsurprisingly defence counsel made a further application to adjourn. Being all experienced magistrates [a comment damning with faint praise akin to "with greatest respect" often used by lawyers in a condescending fashion to we mere J.P.s] we had discussed this possible turn of events in the retiring room between our sips of coffee.
Our legal advisor to whom we had conveyed our thoughts five minutes earlier sat rigidly facing the parties as our reply was made. "This bench in the interests of justice cannot now adjudicate. Although we are well aware that we can disregard much of what has been told us there is no escaping that knowledge of the admitted damning opinion in the dentist`s statement could give rise to possible prejudice and regrettably the bench must adjourn this trial to another date and another bench. The Genie is out of the bottle. If the parties had earlier agreed their position that the dentist`s statement could have been appropriately redacted the case would have gone ahead." The prosecutor`s head slumped.
"Let`s get on with it" is like a car`s accelerator; it needs to be pressed to allow progress but without a brake calamity [or an appeal] is just around the corner.
NEWS, GOOD NEWS AND BAD NEWS
by TheJusticeofthePeace @ 05.
Nov. 2010. – 08:22:04
ALCOHOL, ASBOs & POPPIES
by TheJusticeofthePeace @ 04.
Nov. 2010. – 12:42:13
Alcohol has been in the news recently. I suppose alcohol is never out of the news. The report published earlier this week by Professor David Nutt, he who was sacked last year by Gordo or one of his henchmen, proclaiming that alcohol is more dangerous to society than hard drugs was rubbished by some insofar as little or no account was taken of the numbers indulging. Be that as it may is there anybody who would allow the virtually uncontrolled availability of this drug if it had not been part of human society for six thousand years? It is as much part of daily life as music or art. Not everyone is a Mozart or Picasso and some do not appreciate any form of self expression much less that of others but it is part of our being since Homo Sapiens became Homo Sapiens Sapiens.
EUROPEAN COURT OF HUMAN RIGHTS GIVES CONVICTS VOTE
by TheJusticeofthePeace @ 02.
Nov. 2010. – 09:53:19
The European Court of Human Rights was not on my blogging agenda this morning until 8.20am when a convicted killer was interviewed on Radio 4 “Today” attempting to justify his successful campaign to achieve a vote for convicts. He even had the temerity to assert that without such a “democratic right” his former criminal associates inside the walls of Strangeways or Pentonville etc would have less reason not to riot to achieve some spurious aims. He was totally unable to comprehend that in being punished for acting outside society`s norms it was not unreasonable to preclude convicts having an influence on representation in parliament or elsewhere.
Lord Falconer former Lord Chancellor whose opinion was also broadcast admitted that the previous government and he personally were opposed to the decision taken by the ECR for very sound reasons based essentially on the fact that prisoners` exclusion from society for disregarding its laws rendered their right to elect representatives to that society null and void. He suggested that the loose wording of the decision would in all likelihood allow the government to set a minimum period of sentence as a fault line eg only those sentenced to fewer than two years custody would be given their so called right to vote. Neither interviewee was questioned on the nuts and bolts of the practicalities of this decision.
I am firmly with his good lordship on this. On practical terms it is a problem; on moral terms it is a disgrace; on social terms it is on a par with allowing the inmates to run the lunatic asylum and on political grounds it will further distance normal law abiding citizens of this country from any confidence that their elected government is wholly in control of this country`s destiny. And that makes for profound concern. When democratic institutions are accused of ineffectiveness or being unrepresentative of those they serve there is always a clear and present danger of the populist who claims that he can make the trains run on time.
TOO OLD TO BE A JUSTICE OF THE PEACE
by TheJusticeofthePeace @ 01.
Nov. 2010. – 10:31:48
Hansard source (Citation: HC Deb, 26 October 2010, c216W)
The contribution of magistrates of all ages is invaluable. However, it is important that magistrates reflect the diverse communities they serve. While there has been positive progress on ethnic and gender diversity, 82% of magistrates are 50 or over and the average age is 57. As well as taking magistrates out of step with other judicial offices, increasing the retirement age would reduce the number of available vacancies and thus reduce opportunities for younger people to become magistrates.
So there we have it; the last word from the Minister but follow that logic to Sheffield. Today the South Yorkshire Star reports the swearing in of new magistrates in its latest intake. They total six in number with a mean age of 52 the youngest being 43 and the oldest 61. Personally I consider that 52 is not an inappropriate age to begin this job but I do not consider that any but the most unusual candidates under 21 are equipped so to do.
Latest age profiles [March 2010] of the magistracy are interesting.
Under 40........3.9%
40-49 ............14.3%
50-59 ............31.0%
60+ ................50.8%
What is perhaps more interesting in relation to the Minister`s parliamentary answer is the profile of newly appointed magistrates at 31/03/2010
Under40.........23.9%
40-49.............28.6%
50-59.............35.7%
60+.................21.1%
I make no conclusions on these figures but when any policy is driven by a target I have fears that underlying requirements might be undervalued.
LEGAL LIABILITY OF CHILDREN IN NEW YORK
by TheJusticeofthePeace @ 31.
Oct. 2010. – 11:07:23
Events and news are the lifeblood, heart and lungs of any blogger. For this blogger these stimulants usually emanate from the legal posturings and goings on to be found within this country but occasionally a piece of news from abroad is just asking to lifted.
Anyone who has watched that amazing TV series based on the New York Police Dept. “Law and Order Special Victims Unit” will have noticed that police are in the habit of questioning suspects without their necessarily having a lawyer present. The questioning of children on their own also seems to be within their rules.
I have attended court rooms in central Manhattan and generally been impressed with the efficiency of the arraignments court and the quality of justice. Indeed after speaking on behalf of a down and out pleading guilty to begging I saw a Public Defender pass a dollar bill of unknown value into the departing miscreant’s hand with the words, “That will get you home”. I`ve yet to see a duty solicitor show similar monetary compassion. This was also the occasion when, as the judge rose at the end of her shift, I stood up from my seat in the open public gallery at 4.00p.m to be sternly told off by one of New York`s finest, “Stay seated until the judge leaves the court”.
But to return to the topic, a New York judge has ruled that a six year old child can be sued. Even with the bare facts of the report it does seem perverse. Although the American legal system is based upon English common law the ever increasing European influence in this country seems to be taking us away from that common foundation. Whether that is a good thing or not I leave to others.
OUT OF COURT DISPOSALS AND SOME CONSEQUENCES
by TheJusticeofthePeace @ 30.
Oct. 2010. – 11:50:42
At Preston Crown Court His Honour Judge Anthony Russell QC commented that a FPN given to defendant and amateur boxer Jonathan Toomey six months previously for a public order offence involving a pub fight prior to the realisation of the seriousness of the assault persuaded him that immediate custody was inappropriate and his twenty four week sentence for assault occasioning grievous bodily harm was suspended for 24 months. The full report is available here. Those who regularly practise at crown court might have their own observations on that sentence.
In the High Court an appeal against a caution under the Dangerous Dogs Act 1991 was dismissed. To this non lawyer it seems unusual that this matter was allowed to get so far. Simple cautions are or should be administered only after guilt has been admitted. Normally if an individual refuses to admit guilt a charge would be laid by CPS in conjunction with police and the case would be settled at trial. We do not know more than the very basic facts of this case but in a perverse way it demonstrates that perceived injustice can be taken to the highest levels of jurisprudence by anybody who has the perseverance and the cash so to do.
Having been a jogger with many instances of having various parts of my body scratched from ankle to shoulder by dogs varying in size from tiny terriers to a St Bernard [stood up and laid its paws on my shoulders as it looked down at me] whose owner in her defence remarked, “He`s only my pet puppy.” and I kid you not I replied, “He might be only a puppy to you but he`s a terrifying ten stone animal to me.”…. I can only add that all dogs should be muzzled in public……just like some bloggers perhaps.
NO PUBLIC CASH HANDOUT FOR J.P.s` CELEBRATION
by TheJusticeofthePeace @ 29.
Oct. 2010. – 15:17:05
We read yesterday that the E.U. is demanding additional £billions from constituent governments in order to fund its profligacy. David Cameron is fighting his corner on our behalf for the “Parliament” and Commission to [once again] put their houses in order especially at this time of international belt tightening. Those whose purpose is to spend money supplied from outside sources especially those without representation tend to do so without constraint. At the very least their demands are not often tempered by considerations for the ability of the potential giver to afford the demand.
CONTEMPT
A report on contempt proceedings at Weymouth Magistrates` Court makes interesting reading. I ask myself whether or not the bench showed remarkable restraint or was too weak in its reaction. Generally situations like this must be reacted to very promptly and unless a winger immediately whispers words to the effect….”send her down if she continues…….” the chairman must be decisive and remain in control. Colleagues might have their own opinions.
WHAT`S SAUCE FOR THE GOOSE.................
by TheJusticeofthePeace @ 27.
Oct. 2010. – 14:39:35
LOCAL OPPOSITION TO A COURT CLOSURE
by TheJusticeofthePeace @ 27.
Oct. 2010. – 12:27:53
THE SUM OF ALL [CAR] PARTS
by TheJusticeofthePeace @ 27.
Oct. 2010. – 11:30:58
We occasionally read of attempts by members of the public, dissatisfied with the efforts of their local constabulary, to take matters into their own hands. Such actions are sometimes referred to as vigilantism. But now and again they aspire more to Hercule Poirot than Billy the Kid.
A few weeks ago we had a case of vehicle theft. The CPS narrative was as follows:- Jack was the proud possessor of a classic car, a blue Austin A30 which had seen better days; days for example when the doors locked and the silencer silenced. On the night of its theft Jack was awoken to see his pride and joy being driven off belching smoke at the maximum speed a 1956 1 litre car needing a de-coke could hope to reach. The local cops took all the details the following day and that was that. Like many owners of all manner of old things especially cars Jack was a regular ebayer and during one session of surfing about two weeks after the theft he noticed an auction for parts of a 1956 blue Austin A30. On impulse he contacted the seller who described what he had for sale; namely many many parts for said vehicle. In fact so many parts an enthusiast could virtually rebuild a whole car. By now Jack was almost certain his A30 had been dismantled the value of the parts being considerably in excess of the value of the car as a runner. When the seller told him the parts could be inspected at an address no more than ten miles distant he was convinced his blue baby Austin had indeed been dismantled. On telling his local neighbourhood police officer all this he was advised to buy back a part he was sure came from his car and take it to the police station where further action could be authorised. So he did as requested. He returned with a front off side wing dented and rusted by fifty years` British weather and careless upkeep. With that as evidence police visited the address and arrested the defendant who despite a not guilty plea was convicted by the totally credible evidence of the car`s owner and the fairy tale nonsense the defendant offered.
When the sitting was over and the court cleared even the usually nonchalant CPS prosecutor remarked on his admiration for the determined bulldog spirit of the victim. An unusual case but a breath of fresh air for the bench and for anyone who admires a spirit of “get up and go”.
LATE CHANGES OF PLEA
by TheJusticeofthePeace @ 25.
Oct. 2010. – 14:40:32
It should not be beyond the wit of man, even if that man were Kenneth Clarke, to offer proposals such that sanctions against such late decisions would reduce their propensity.