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.

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

Vacated trials are the bane of court life. A date has been set, usually two or three months previously, paperwork is collated, witnesses have been warned and on the due date along with CPS prosecuting staff, defence lawyer[s], usher and three magistrates or a judge rostered for duty everything is set to go. But no! A last minute bit of plea bargaining and a guilty plea to the original or a lesser charge means that much time, money and effort by many people has been wasted. This is intolerable. And it is what has transpired earlier today at Newcastle Crown Court when Newcastle United first team footballer Andy Carroll changed his plea and pleaded guilty to common assault. He had been due to stand trial for assault occasioning actual bodily harm last December. 

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. 

JUDGES ON TARGET

 

by TheJusticeofthePeace @ 25. Oct. 2010. – 14:16:21

If the Magistrates` Association cannot secure widespread media coverage of its opposition to proposed court closures the judges surely can. After an analysis by Lord Justice Goldring, the Senior Presiding Judge for England and Wales Lord Judge agreed that for 46 courts the case for closure had been made and that 34 should remain open. The remaining 77 intended closures should be re-examined. For all its chairman`s huffing and puffing at this observer [comments October 24th] the fact remains that with one press release on October 23rd the senior judiciary have created greater interest in this matter than all the many pages of the M.A.`s Response document. Of course a few hundred judges in the public mind will carry greater authority than 28,000 J.P.s and perhaps rightly so. It is however no excuse for the failings of the M.A. which when asked to counter the greatest threat to the magistrates` courts` system for a generation has been unable to hit the target. 

DISGRUNTLED CHAIRMAN AND DOGGY DOODLES AMONGST OTHER THINGS

 

by TheJusticeofthePeace @ 23. Oct. 2010. – 17:16:59

For this blogger it`s been an interesting week. The Chairman of the Magistrates` Association has suggested in a comment that I contact him in person with my suggestions after my post on October 20th MAGISTRATES RESPONSE TO COURT CLOSURES COULD BE BETTER. This is the man who is the leader/figurehead for the organisation. The inadequacy of the Response is nowhere better demonstrated than in a column in the Law Society Gazette where a long report of the Justice Minister`s remarks in the House of Commons on the proposed closure of 157 magistrates` courts merits this, “The Magistrates Association said it had serious concerns about the proposed closures, which it said run counter to the coalition agreement on decentralisation of services and would save only a ‘tiny fraction’ of the MoJ’s budget.” If that is the best the M.A. and its Response can extract from Mr Djanogly what hope is there? On a personal level I suppose I should be pleased to have irritated a hornet or two but I`m more inclined to consider the organisation is approaching the time when the only worthwhile comment is that of John Reid on becoming Home secretary and describing his new domain in 2006 “as not fit for purpose”. 

But the political and judicial game goes on. Ever increasing bits of information about expenditure at the Ministry of Justice will no doubt be revealed in order to cast aspersions on the “cuts”. Such was published in the Bridgwater Mercury where it was reported that the Ministry spends £1,600,000 on press officers, a sum, the paper asserts, which would pay for the running of Sedgemoor Magistrates’ Court for eight years. I wonder how much is spent at the Ministry on tea and coffee? It is rumoured at my court that when its lease is expired we will no longer have our hot drinks dispenser. Our kettle has already gone. How can a J.P. face the rigours of the retiring room with just cold water for company? 

Fixed Penalty Notices are now common place for myriad minor offences. Most are paid, some are questioned and a few recipients choose to go to trial and have the appropriate authority prove their guilt. Any expense they incur is their own. But they must expect the consequences of a failed defence…..costs and a victim surcharge of £15 applied to all offenders who are fined. 

Dog owners allowing their four legged friend to shit on public property and failing to scoop up their mess do not in my opinion deserve very much sympathy. In addition to the obvious distress to the unwary walker the disease of toxoplasmosis is often the result of unwary children putting contaminated fingers in their eyes when a park has been used for the dog`s doodles; the same park where playful kids have played for generations on the grass. So it was with some surprise I read the report in the Yorkshire Post where an offender was fined £75 for such an offence when the FPN is £80. Of course the total outlay for the guilty party was much more but in my opinion as a matter of principle the fine should not have been less than £80. 

Sex offenders especially of the more serious kind are not my favourite people. However I have an iota of sympathy for the case reported in the .York Press The man in question had pleaded guilty having committed terrible abuse against a single victim forty years ago. Since then he has never offended in any way at all. There is no doubt he will now pay for his deviancy as a teenager until his dying day. 

And in the last words of Clark Gable in that most famous film, “Tomorrow is another day”.

FEMALE J.P.s AT RISK

 

by TheJusticeofthePeace @ 22. Oct. 2010. – 08:14:58

Among suggestions thoughtlessly aired sometimes under pressure by magistrates officially or unofficially town halls were mooted as being possible court venues. These comments were taken up enthusiastically at the time by the “cutters”. Now Jonathan Djonogly, Minister of Justice, has responded with a ludicrous statement to ease his way out of a self created problem. Aware of the increasing opposition to some of his department`s proposals he has said that utilising town halls might not be a good idea because middle aged female J.P.s might be afraid of having their bottoms pinched or worse. All I can add is that I would be afraid to be accosted by some of my female colleagues on a dark night. Tell us another Mr Djonogly.

On a more serious note he refers again to the possibility of witnesses giving video evidence from police stations. In plain words this is a very bad idea. Only in the most exceptional circumstances eg prisoners on remand or incarcerated, children, fragile victims, desperately ill people etc etc should video evidence be a substitute for live evidence in a courtroom.

REVOLTING PEASANTS

 

by TheJusticeofthePeace @ 21. Oct. 2010. – 12:03:17

We`ve had the explosion. The device went off as planned. The destructive power of the speech provoked the expected reaction from those caught in its blast from which the dust is yet to settle as far as the planned closure of up to 157 magistrates` courts. By the year`s end the pronouncement will have been made and hundreds of court workers will be wondering if they have a future in government service. It would appear also that provision has been made for the resignation of up to 3,000 magistrates. In all likelihood those colleagues who resign will be the most experienced. If ideal financial investment strategy is the rule of thirds….one third property, one third equities and one third cash an ideal bench is constituted one third newbies, one third experienced wingers and one third chairmen then the 10% resignation rate could prove uncomfortable to say the least. It would provide more reasons for an increase in DJ recruitment.



So far we have not emulated the Spanish, Greek or French by having massive displays of workers on the streets. But for those who remember the Poll Tax riots, Peterloo Massacre or even the Peasants` Revolt the English do occasionally display their anger in public. We`ll all need to brush up our knowledge of legislation surrounding the various forms of public disorder and associated offences.

MAGISTRATES RESPONSE TO COURT CLOSURES COULD BE BETTER

 

by TheJusticeofthePeace @ 20. Oct. 2010. – 13:05:22

So now we know*. George [Houdini] Osborne hopes he has made the cash disappear with our hardly being aware. Ex chancellor and current Justice Secretary Kenneth Clarke was almost gleeful when he announced enthusiastically his own proposals in August. Kowtowing to straws in the wind the chairman of the Magistrates` Association in January seemed to be acquiescing in the possibility of courtrooms being held in shopping centres much to the amusement of columnists and the embarrassment of J.P.s. This folly was repeated more recently by the Deputy Chairman and has been discussed at length more than once on this site. 

The refusal of the Association to increase its annual members` fee of a miserable £33 to fund professional PR is lamentable. And that myopic position has been exposed this weekend once again. In response to questions on the Forum of the Magistrates` Association Patrick Cracroft-Brennan Executive Director & Association Secretary said with reference to the official response of the Magistrates` Association to court closures that the official document will give members a much more accurate and in-depth view of the MA's position than The Sunday Times! I would opine that it is not just members but journalists who require the information in that document. 

The problem as I see it is that there seems to be no emphasis on those areas of the Response which are of paramount significance. The most important trees in the forest are obscured by all the wood. It has been made too easy for major items to be ignored in favour of anything that suits the critics` agendas. The M.A. is forever responding and fails to be pro-active. If much of the Response is overlooked it has only itself to blame. 

ADDENDUM

The Treasury has published some detail on today`s announcement. The bullet points are copied below but still no mention of actual court closures.
2.68 The Ministry of Justice settlement includes:
•• delivering better value for money from the justice system, while punishing the
guilty and reducing reoffending;
•• plans to reform legal aid, targeting funding on those who need it most;
•• capital funding for maintaining the prisons estate, for essential new capacity and for key invest to save projects; and
•• overall resource savings of 23 per cent in real terms by 2014-15, through reforming sentencing to stem the unsustainable rise in the prison population, using innovative approaches to reduce reoffending and resolving more disputes out of court.

KNIVES, CRIME AND STATISTICS

 

by TheJusticeofthePeace @ 18. Oct. 2010. – 12:09:47

If we don`t know what`s happening it`s difficult to take measures against the event if the event is unpleasant. If the event is illness correct diagnosis is required to effect treatment and aid recovery. We hear almost daily of fatal results owing to mistakes in diagnosis. And so it is with crime. And so it is with crime statistics. Diagnosis and treatment in a statistical sense is essential to reduce the scourge of knife crime.

It is virtually a hopeless task to ascertain the extent to which knives [and bladed instruments] are carried, used and punished and form a comprehensive picture of this nationwide problem. It is as if the authorities tasked with the assembly and publication of this knowledge have obfuscation as a primary directive and dissemination as a secondary. As a not unnatural consequence many, most? people have little confidence in what they read and their opinions are moulded not by the facts but by their general political and social outlooks.

Within the last few days various reports have been published in the print media. Staffordshire Police are proud to publish their latest half year figures which show, they say, that crime has fallen. A local judge seems to echo this in one respect when he comments that deterrent sentences or to use his words ,”to send a message”, are keeping down knife crime in Stoke. I presume his honour is getting his information from a reliable source because his county police and the Home Office don`t tell us much about knife crime in Stoke, whether or not it is increasing or decreasing or whether deterrence plays any part in these unknown statistics. The closest approximation to recent information is available from the Ministry of Justice. It is not often a commercial organisation provides interesting information on a topic not directly related to its own interests but Insight Security has some thoughtful comment.

In December 2008 the then Labour Justice Minister inter alia that , ”All knife crime offenders given any amount of community payback as part of their sentence will now have to do at least eighteen hours of work a week and potentially be subject to a curfew that keeps them off the streets in the evening and a probation appointment during the week on top of these hours”. I am doubtful that that disposal is being observed. I am also doubtful that a Minister should be interfering such that he is appearing to micro manage sentencing. In any event there is no way to find out the true situation and that in itself is an indictment. 

The victims of knife crime are generally aged fifteen to twenty five. All those reading this and others who have a personal interest in the well being of themselves or relatives of this age group would be well advised to think twice when reading the latest boasts of Chief Constables that “the war on knife crime is being won”, or words to that oleaginous effect.

FINING FOR UNDER AGE SALES OF ALCOHOL

 

by TheJusticeofthePeace @ 16. Oct. 2010. – 14:32:47

A topic common to the many who comment on the state of disorder on our streets and elsewhere is the easy availability of alcohol to children. It has been blogged here as recently as July 14th. One would have thought that with a maximum fine of £5,000 for under age sales available under s146 Licensing Act 2003 offenders, particularly persistent offenders, would be deterred from the practice. One would have thought wrongly. 

In England and Wales in 2008 there was a total of 326 fines imposed. The Criminal Justice Areas with the highest and lowest numbers of fines imposed were, respectively, the Metropolitan Area 59 and Cambridge, Devon & Cornwall, Humberside and Warwickshire with zero. Indeed it is not since 2006 when a grand total of four was fined that a retailer in Devon & Cornwall has been fined for this offence. I had not been aware that Peterborough, Penzance, Hull or Dudley were towns where the under eighteens were on the wagon. To add insult to injury the maximum and minimum fines imposed in 2008 were Cheshire £1,050 [seven offenders in total for 2008] and £152 in Lancashire [twenty two fines imposed] . Only when retailers` pockets feel the loss of many thousands of pounds for this offence will the situation change. I believe Theresa May has hinted as much. 

These figures have been extrapolated from a parliamentary answer on June 17th by James Brokenshire (Parliamentary Under Secretary of State, Home Office; Old Bexley and Sidcup, Conservative). I rest my case.

A SAD TALE

 

by TheJusticeofthePeace @ 15. Oct. 2010. – 12:21:25

From my other life I would opine that most reasonably highly skilled and trained professionals whose work is with real live human beings as opposed to screens or bits of paper will find that what might be a life changing experience for those they serve is just another routine “day at the office”. Magistrates are no exception especially those whose time served is in double figures. An awkward incident recently reminded me of a somewhat sad predictable tale that occurred when I undertook an emergency extra sitting last month.

It was a breach court. Kieren was in the dock. He was just turned nineteen and had arrived from Ireland about ten years previously…….broken home……public order, class C cannabis and theft offences as a juvenile. He was before us on a warrant for ten times breaching his four month curfew [which had now expired] imposed for attempted theft from a vehicle times four. In essence walking home after leaving a night bus he had casually tried the door handles of four parked cars, been spotted and the rest is routine. The previous pre sentence report was from another county so we put back his case for a copy to be faxed. Watching all this from the public gallery was a female listening intently between conversations with her companion. They were told that if they wished to talk it should be done outside the courtroom. Another matter was called on. The chattering females had continued their exchanges and when one took a phone call they were told to leave the courtroom. This they did without protest.

And so Kieren`s pre sentence report came in. It indicated a supervision order with unpaid work as a recommended disposal with the usual pro forma comment that custody would offer no rehabilitation and if it were the preferred option the shortest period consistent with his culpability and the seriousness of the offence should be given. An alcohol treatment request had been returned as unsuitable. We retired. Our decision was not to sentence for the breach but to re-sentence on the original matter which we considered to be at the low end. A supervision order with medium level community requirement of unpaid work was our decision. He was brought back up, told the news and was visibly relieved. He was told in no uncertain terms that he had been close to being put in the van to be taken to the local prison, what probation would expect of him and that further breaches would probably conclude with her Majesty`s hospitality. He went downstairs to be released. An hour or so later Tracy was called. Nobody appeared. Our usher mentioned that she had been seen outside talking to Kieren. One minute later in walks the talkative female whose mobile phone had not been switched off.

Tracy, also nineteen, had offended three times in the past six months and was currently only nine hours from completing community payback for public order offences. She was before us having pleaded guilty to class A possession cocaine and assault by beating. Her PSR showed she had no appreciation of the harm and effects of her actions on other people and her eloquent utterances from the dock were similar although couched in a manner which belied her poor education and early history. We decided that a three month 7.00pm to 7.00am curfew on the assault would be as protective for her as it would be for the public with financial penalty for the possession and sentence was duly pronounced with clear instructions that the curfew began in a couple of hours even if the tag fitter was late in arriving. She burst into tears. Sobbing uncontrollably she was assisted out the courtroom by our usher. It was a long list and we did not rise until about 6.45pm. As we were about to leave our usher said that Tracey`s words to her as she left the court were to the effect that, “They can`t do that to me. I`m not bloody staying in every night for three weeks never mind three months…..”

Driving home about 6.55pm I saw Tracey beer glass in hand outside the pub nearest to the court. She never saw me but one pound to one penny says she`ll be seeing me or my colleagues again very soon.

SALAMI SLICING AND THE DAILY MAIL

 

by TheJusticeofthePeace @ 14. Oct. 2010. – 10:19:30

There`s a fashion for everything and not just how much of a woman`s legs should be visible when she`s wearing a skirt. There is fashion in thinking. What`s that phrase?...........think the unthinkable………it sums up nicely in tweet form going against that which is the accepted norm. And then there is the Daily Mail. Is there any other publication the name of which immediately conjures up so accurate an impression of what one is going to find inside? Perhaps Country Life or The Lady but they`re hardly in the same league and who gives a damn anyway.

Sentencing is as much about fashion as is dress design. Fashion could be said to follow public opinion as much as to be a leader of opinion. You pays your money and takes your choice. There are as many who want to be out of step with their contemporaries for some activities as there are conformists. Today`s Mail online carries the headline “Send fewer thugs to jail and save £20m a year, judges and JPs told”. This journalistic twaddle refers to the recent consultation on Assault published by the Sentencing Council. The document is 58 pages and although I have not read every word whether or not I agree with the proposals is currently neither here nor there. Nowhere did I have the impression from the document that justifies the Mail`s emotional headline. In fact that tenor of headline and its implications was robustly dealt with by Judge Darwell-Smith whom I quoted on October 11th as follows at the swearing in of new Justices of the Peace in Bristol

“You should no more pass a custodial sentence because the Daily Mail thinks you should, or a non-custodial sentence because the Ministry of Justice tells you the prisons are full.”

Indeed unpaid J.P.s who are not beholden to any government for their standard of living are in a unique position to voice their objections to any proposed changes. Perhaps that is why I have a distinct feeling that in the long term irrespective of party many in the seats of power would not be sorry if District Judges became the main arbiters of summary justice in this country. 

The manipulation of public opinion is as old as civilisation. There are countless valid reasons for avoiding sending offenders to prison and equally potent motives for incarcerating them. Unfortunately the current debate is being driven by the weight of government attempting to slice the justice system salami down to the rind and pretend it`s still enough to serve all at the table.