THE TALE OF CONAN THE DAMAGER

 

by TheJusticeofthePeace @ 19. Nov. 2010. – 05:29:49

Since I was appointed, only when my court sittings have been exceptionally interesting for one reason or another have I kept personal notes of events. Sometimes it`s the typical and sometimes the atypical events which trigger a memory of a sitting that at the time I did not or forgot to note. Earlier this week a witness swore whilst giving evidence. That doesn`t happen often but it was the trigger, which Hercule Poirot might have said, fired the little grey cells. The tale follows.

It was a an apparently simple case of criminal damage and an offence under sect V Public Order Act. Conan {Gender: Masculine Usage: Irish Means "little wolf" or "little hound" from Gaelic cú "wolf, hound" combined with a diminutive suffix. Sir Arthur Conan Doyle was the author who wrote the Sherlock Holmes mystery stories.} was built like Arnold`s first cinematic creation but wasn`t a destroyer although he was a damager having had had a previous conviction for using his spray paint where he shouldn`t have. This time he had been caught in the act by a PCSO and a P.C. He was as expected unrepresented but at about twenty three years old he seemed able to express himself verbally in front of us in his educated Dublin accent as well as he had artistically in front of a wall. He had pleaded guilty [which of course we did not initially know at the time] to the criminal damage previously but denied the sect V.

The PCSO duly gave evidence of taking the spray paint can from Conan`s hand after a bit of resistance and that the accompanying P.C. made the arrest. And then he surprised all except the defendant and the prosecutor by quoting what was said at this stage in the arrest by the P.C. “Hand over the fucking paint to my PCSO or I`ll fucking have you on assault as well you fucking can of shit!” At this point the PCSO told the court that the defendant had started shouting “Gestapo” to attract attention from the few people nearby who had “slowed their steps to watch”. The defendant did not have much to cross examine; he agreed largely with what had been said but asked if the PCSO did not think it reasonable for him to have shouted causing the very minor disturbance considering the words of the P.C. The PCSO did not think it reasonable. On his behalf our legal adviser asked the PCSO if the P.C.`s words were in his [PCSO] statement and received confirmation. P.C. Johnson would not have been selected for Robert Peel`s first force of “Peelers”. He was about five foot five and seemed years from becoming a customer for Gilette. CPS duly took him through the incident including the swearing and [he had recorded his own words in his own notebook] when asked why he had used such language told us that he was concerned for their safety and wanted to emphasis to such a large offender that he, P.C. Johnson, was in charge and he had the power and authority; not an offender the size of a heavyweight boxer. He denied, when questioned, considering both at the time and now on reflection that his swearing could have exacerbated the situation.

After hearing from the defendant who gave the impression he almost considered himself Banksy`s apprentice it took us a short time only to decide that Conan was not guilty of causing harassment alarm or distress by his words or behaviour. He was fined at the level of one week`s wages plus compensation, costs etc for criminal damage with the usual allowance for an early guilty plea. Our pronouncement, included in the court file, made clear mention of what we thought about the diminutive P.C.`s manner when conducting an arrest.

ONE YEAR OLD TODAY

 by TheJusticeofthePeace @ 19. Nov. 2010. – 05:19:12

I began this blog exactly one year ago today. Its inspiration was that a previous literary project unconnected with the law had itself run out of inspiration for me and twitchy fingers had to find another outlet. Having to put fingers to a keyboard in some sort of logical sequence is not quite obsessive compulsive disorder but perhaps runs it close, the sufferers of that condition being psychologically disturbed and those like me being arrogant enough to consider that others might find some pleasure or interest in the words written. That was 365 days and 395 posts ago. It certainly wasn`t in my mind then that I would be doing this for twelve weeks never mind twelve months. The fact that now every day hundreds of visitors come to this site is certainly equivalent to the jockey`s whip for this middle aged hurdler to keep going in the closing furlongs.

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

High profile cases at magistrates` courts usually make some sort of news; at a local level in the printed, electronic or T.V. media if not in national news outlets. And these cases are usually presided over by a single District Judge and not a bench of three local J.P.s. This is no accident. It`s as if court managers have no confidence that we can provide high quality justice for those “personalities” whose drink, drugs or driving habits are somehow different from those self same drink, drugs or driving habits of the common man [or woman].

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.

Reality television has made the daily work of bailiffs a half hour series of entertainment. Bailiffs of course work for any contractor who has unpaid sums owing from a customer for services rendered…….from the sale of a car to the supply of a parking space. Unpaid court fines` procedure allows for an offender to be arrested and brought to court to explain his non compliance with the court order. Either of two findings can be made by the court which allow the offender to be imprisoned for his reluctance to part with his/her cash; wilful refusal to pay or culpable negligence to pay. Custody can be up to seven days for an amount unpaid not exceeding £200 to one year for a sum in excess of £10,000. The major problem for the courts is the hoops through which they have to jump to impose a jail sentence.

It was interesting therefore to read a report in This is Cornwall about the police in Truro in conjunction with the local magistrates` court attempting to prise some outstanding fines from the reluctant hands of offenders.

For some people only direct action of this nature with the threat of imprisonment will force payment. With the stated policy of the Coalition to reduce the numbers of prisoners come what may there is absolutely no prospect whatsoever of the fines deficit being reduced……..another story of too much carrot and not enough stick.

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

The recent appeal in the case of Bobby Cooper Appellant/Defendant- and -Wrexham Magistrates Court should in my opinion be compulsive or should that be compulsory reading for all J.P.s. The essence of the judgement was that the L/A had overstepped the boundary between his duty of providing legal advice and guidance to his bench and the finding of fact by the bench. The result was that an appeal against verdict was allowed.

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

The Ministry of Justice yesterday published a Compendium of reoffending statistics and analysis. Its 160 pages contain fascinating detailed analyses. This is very good news that is fit to print. There are widespread reports of verbal abuse from the public gallery at the sentencing of Roshonara Choudhry self confessed jihadist islamist who tried to murder former Treasury Minister Stephan Timms. It certainly appears that the contempt laws could have been invoked. One does wonder why further steps were not taken and if there is the slightest suspicion that inaction was due to not wishing to be seen to be apparently inflaming the situation questions will be asked as to why not. Inflammable situations need to be extinguished or be allowed to burn out.

A recent BBC report that according to a Bristol Solicitor trials in his area are collapsing because of CPS inefficiency is hardly news to anybody involved in day to day court work. Only when a major case; murder or rape or similar collapses with dreadful consequences for the victim[s] and or subsequent victims and the Daily Mail begins screaming does it appear that action is taken. The quality of CPS prosecutions leaves a lot to be desired where I sit. I am certain colleagues throughout the country will have their own knowledge where the interests of justice have fallen by the wayside of CPS incompetence.

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.

Since licensing was removed from magistrates` courts against the advice of many, there has been a proliferation of premises where the lethal liquor has been available for extended hours sometimes extending to all day availability. Naturally enough this has led to an increase in alcohol related offending. One would have thought that heads much wiser than mine would have put two and two together and managed to come up with the right answer to this development; ie admit the policy was flawed and try to put Humpty Dumpty together again. But no! We`ve got ASBOs [only for a while if Thersa May lives up to her words to abolish them] and we have Drinking Banning Orders about which I commented April 16th.

All this is predicated on the effect on individuals; the whole being the sum of its parts. And the part in question today is 18 year old Peter Gillett of St Annes who was recently the subject of an ASBO the effect of which is that he should do his drinking far from St Annes. No doubt if DBOs had been available to the bench [they are available currently only in selected jurisdictions] he would have had that thrown at him also.

The only way to reduce alcohol related offending is to remove the easy access to booze for those unwilling or incapable of knowing when to stop. Nuff said.

At this time of year the Magistrates Association Forum has for the last couple of years carried comment on the suitability of J.P.s wearing poppies in court. Some of my colleagues for spurious reasons find the practice unacceptable. So far the subject has yet to provoke discussion this year. Unlike on BBC TV where they seem to be de rigueur from the last week in October I wear a poppy from the beginning of November until the eleventh in court and out. Any objectors can take a hike.

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

Parliamentary answers are, I suppose, answers straight from the horse`s mouth. They are as close as an outsider can get to inside information. So those who do not relish compulsory retirement from the bench as they approach three score years and ten have been offered no glimmer of hope that they might continue in office at 70+ after a question put by Anna Soubry M.P. to Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative) on October 26th and copied below.

Anna Soubry (Broxtowe, Conservative)

To ask the Secretary of State for Justice if he will undertake a review of the requirement for magistrates to retire from the bench at the age of 70 years.
Hansard source (Citation: HC Deb, 26 October 2010, c216W)

Jonathan Djanogly (Parliamentary Under Secretary of State (HM Courts Service and Legal Aid), Justice; Huntingdon, Conservative)

There are currently no plans to undertake a review. The retirement age for magistrates is 70 and is set in statute under section 13 of the Courts Act 2003. This is in line with the retirement age for the vast majority of other judicial offices.

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

I`ve commented here many times on matters emanating from Crown Courts but rarely on reports from the High Court for the obvious reason that cases there are usually unconcerned with the run of the mill events orientated around magistrates` courts eg cases involving dog bites and similar. Earlier this week, however, both a Crown Court and a High Court report involve disposals well known to those of us who occupy the bench at the lower court…..fixed penalty notice [FPN] and caution.

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.

It appears that my colleagues in Gwent via their branch of the Magistrates` Association are infected with that same E.U.bug albeit on a much smaller scale. £2,500 was requested from each of five various local councils to fund celebrations of the 650th anniversary of the Magistracy. To this observer it is no surprise that at least one such council has refused. I cannot say I disagree with that decision. One could argue that the institution of the Magistracy is a benefit to the community and that as such is entitled to a donation for the celebration. But what of other voluntary organisations in similar circumstances now or in the future……….should they be so treated. Mountain Rescue, Lifeboat Service, St Johns Ambulance, Salvation Army and others all have their unique and respected place in society and are mainly run by volunteers. In times of local and national cash reductions this is no time for J.P.s to go out with the begging bowl for a bit of pomp and circumstance. Fund it from within the organisation or forget it.

CONTEMPT

 by TheJusticeofthePeace @ 28. Oct. 2010. – 11:24:23 

Dictionary dot com and doubtless other sources define contempt of court as

a. wilful disobedience to or open disrespect for the rules or orders of a court (contempt of court) or legislative body.

b. an act showing such disrespect. 

In this country it is governed by the Contempt of Court Act 1981 and the Practice Direction {criminal:consolidated}. The Judicial Studies Board in 2005 issued a five page checklist for magistrates which deals with the subject from defining it, acting upon it and punishing it and all stages in between. 

For a J.P. these five pages are certainly a substantive guide but no more than that. The old adage………if it looks like a duck, waddles like a duck, quacks like a duck then it must be a duck can loosely be applied to recognising a contempt. The judgement that must be exercised when contempt has indeed been recognised in my opinion cannot be taught during a training session. Bench chairmen who have in their normal life been involved in people situations are more likely to have developed the skills required to deal with the problem than others whose lifestyle has been perhaps more solitary or self sufficient by accident or design. The ultimate sanction is for the offender to be taken to the cells to cool off. If the offence is denied a trial takes place where the maximum penalties are a fine of £2,500 and/or one month imprisonment. 

I have had only one occasion to send a person to the cells and that was because he refused to turn out his pockets when asked to pay part of a fine imposed and was disbelieved when he denied having any cash on him. He was brought back an hour later with the court security officers having retrieved a £20 note from an additional pouch sown into the inside of his jeans. The commonest contempt is mobile phones being used, mostly in the public gallery, but occasionally by court officers as well as defendants or witnesses not having them turned off. In those circumstances a fixed stare at the culprit is usually enough for the item to be switched off. If courts were run efficiently, and they are not, staff would ensure mobile phones were not operative in court. The website YouTube is an incentive for surreptitious filming of court and has been used to propagate the ravings of certain pseudo political activists. More attention must be given to this problem. 

Whether a defendant or witness is showing contempt by keeping his/her hands in his/her pockets is a moot point for some. I am sure that all my colleagues have noted such actions and that it is a matter of judgement whether or not to ask that the hands be taken out. When such a request is made and ignored by the party the authority of the court is demeaned if it is not followed up so one has to be very careful that the slippery slope to the ultimate sanction has been mentally surveyed in advance. Failing such foresight the result of the situation could be embarrassing to say the least.

District Judge Marie Mallon at Huddersfield Magistrates` Court was apparently not taking any nonsense from Jonathan Reaney when, according to a report in the Huddersfield Daily Examiner, she ordered his removal from the building when he refused to remove his hands from his pockets. It does appear odd that in these circumstances he was not detained in the cells. 

Thankfully the disrespect for authority widely noticed everywhere, for most people stops in court. If it didn`t, courts would have difficulties insofar as most magistrates` courtrooms excepting remand courts do not have security personnel in place. In the current climate when even ushers are rationed there is no likelihood whatsoever of that situation change

ADDENDUM 30th October 2010
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

People have been trying to do it for centuries in one form or another. First it was the medieval apothecary trying in vain to create gold from lead and laterally it could be said that it`s not uncommon for all of us to try and have our cake and eat it. We can`t except the Chief Constable of Humberside thinks he can.

A report in the East Riding Mail hails a perceived reduction in crime which the top cop attributes of course to his force`s efforts in that direction. But when the same original figures from unnamed government sources indicate that sexual offences have risen 25% he claims that the increase is because more victims are reporting crime. But should that logic not be applied across the board? Could the perceived reduction in reported crime not be attributed to the fact that for many people a decision has been made not to bother making the effort to contact police especially about petty and not so petty matters which they realise will not be helped by reporting them. I merely pose the question. An old proverb comes to mind containing the words gander, sauce and goose.

LOCAL OPPOSITION TO A COURT CLOSURE

 

by TheJusticeofthePeace @ 27. Oct. 2010. – 12:27:53

The proposed closure of 157 courts has brought forth such a unified outcry from so many varied sources including M.P.s and local councillors of all parties that the Minister must have dedicated staff conjuring up all the reasons that are going to be put forward in a couple of months when he reveals that probably more than half of the courts in question will not actually shut their doors. If ever there was a public declaration of a policy built on flimsier foundations it has escaped me. From what I have noticed almost every local newspaper in England and Wales in a locality affected by the impending closures has at some time in the last month or so carried a story about why its local court should not be closed. 

Today as an example the Harrow Observer in north London has its own take on its local court throwing facts and figures back in the Minister`s face. When the climbdown on court closures arrives on the front pages and local TV turn down the red tint on the colour control because beetroot will seem as a whiter shade of pale in contrast to the face of the Minister.