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.

TYPICAL MORNING AT COURT

 

by TheJusticeofthePeace @ 13. Oct. 2010. – 14:54:16

All those involved in the work of the courts from ushers to judges would have appropriate comments when they hear of government ministers seeking to address “inefficiencies”. If one was Henry Ford then the answer would be fairly simple……employ a rigidly selected workforce at a wage just enough to keep it from joining the masses of unemployed, ensure that all bits of the final product are in the proper place at the proper time and enforce a strong disciplinary culture…..and of course have an admiration for the ethics of the nazi party.



However Jonathan Djanogly seems to think that efficiency or utilisation at magistrates` courts can be raised from the current 64% to 80%. [Written Answers - Justice: Courts: Closures (6 Jul 2010)] This is an admirable target.; so is landing a man on Mars by 2025.



Our court along I suppose with others habitually double lists trials to ensure work goes ahead. This of course is as a result of the number of trials vacated, cracked or foreshortened for any reason. Case progression officers still seem to be caught short. A colleague`s experience a few days ago reminded me of a typical morning`s under utilisation in late September.



We had two trials listed for the morning. No usher was available so that was a good start. We told our hard pressed L/A we wouldn`t proceed until an usher was available. So with a ten minute delay [an usher became available] we began the sitting with two trials listed for the morning. The first was a second listing of an assault and everyone was ready to go…. the defendant, his counsel and witnesses and CPS with their three witnesses. The other matter was not so straightforward……..is anything? It was a third listing, and the second for trial on alleged handling. Apparently legal aid according to the court file was not granted until the morning of the [adjourned] trial and the solicitors were informed the following day. On this day he appeared before us without representation having been told by the solicitors in question that legal aid had not been granted. He told us quite definitely that he did not want to phone the solicitors to sort out the confusion and that he would represent himself. He was again offered an adjournment which he declined. He had no witnesses. CPS told us that their case was mainly agreed statements and two police officers. Her estimate was two hours maximum. Thus we had two trials ready. Since the handling matter had been adjourned previously through no fault of the defendant and with his determination to go it alone we decided to proceed with that prior to which pronouncement the defence counsel for the assault had made quite a performance of her observations on our position. We adjourned that case to a later date but then our usher who had proved her usefulness whispered to our L/A that another court might have a trial vacating but it would be a half hour before that could be confirmed. It was now about 11.00am. That knowledge was conveyed to the assault party. Counsel consented to waiting until 11.30am. and we retired for five minutes to allow the L/A to finish paperwork during which time we spoke to our DJ who commented that he was light for work and could have taken the trial himself but he had no CPS lawyer only a DCW who was of course not qualified for trial work. With that we began the handling trial. When we concluded at 12.30pm we were told that at 12.00 noon the case at the other court was a no go and they could have taken our assault trial.



Such is a typical morning at a magistrates` court. The minister might have his 80% utilisation but at what price? Our court was at 90% utilisation, our neighbours were left looking for crumbs after 12.00 noon and the DJ was being paid to have coffee and biscuits. Double listing might be good for HMCS but it shows less than respect for those who are the users.

AN ANIMAL LOVER

 

by TheJusticeofthePeace @ 12. Oct. 2010. – 08:11:47

I have fond memories of having a cat which was more a watch dog or a mountain lion than a moggie. I`ve heard of the word “dogging”. I know what it means. Dictionary dot com has still to be as up to date as Wikipedia where it is defined as a British euphemism for engaging in public sex. And I know or thought I knew what it means to be an animal lover but I don`t think it is the appropriate term for what Edward Cullen, 39, of Mountain Crescent in Dewsbury is accused of. 

He was before Huddersfield Magistrates last week, but the hearing was adjourned for committal to Bradford Crown Court on October 29. And the charge………? having sex with a dog. We are not told the sex of the dog but I don`t suppose it matters much. If anyone in Bradford has the opportunity to be in the public gallery on the day perhaps they can post a comment here.

AT LEAST JUDGES KNOW OUR VALUE

 

by TheJusticeofthePeace @ 11. Oct. 2010. – 16:11:32

In a period when major changes in the system and practice of magistrates` courts are likely it is heartening to read some praiseworthy words instead of platitudes from government spokesmen.

At the swearing in of new Justices of the Peace in Bristol His Honour Judge Simon Darwall- Smith said the following, “You've joined a group of people without whom the freedom of every one of us would not exist at all. The only thing that stands between us and tyranny is the rule of law, and you are the guardians of that.” He continued, “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.”

Would that these words were uttered by the Secretary of Justice but then he`s a politician.

NO REPRESENTATION WITHOUT CONSULTATION

 

by TheJusticeofthePeace @ 11. Oct. 2010. – 15:53:03

There are some countries where referendums are commonly used to effect major legislative changes and some where they used increasingly sparingly often to get a government out of a tight situation. These two different approaches are epitomised by Switzerland and the U.K. The problem with the latter approach is what is good eg for the goose for Scottish or Welsh devolution is less palatable for the gander of the European Union. Once the referendum cat is out of the bag it`s very difficult if not downright impossible to get it back in.


And so it might be with the Magistrates` Association latest effort to persuade its members that it really does listen to them. A few days ago the chairman sent an e-mail asking our opinions on what best constitutes a suitable size for a bench. This was obviously in light of the impending forced amalgamation of many courts brought about by the current economic meltdown. Apart from the fact that the e-mail link to the voting options was unreliable the decision in itself has now set a precedent.


In June this year Sir Peter North`s Review of Drink and Drug Driving was published. I commented on July 5th when I discovered that the M.A.`s position as published in Magistrate magazine of that month was that the mandatory disqualification period for drink driving, if the alcohol level were lowered, be reduced from the current twelve months; a position with which I and others profoundly disagree. Where is the logic that that extremely significant decision should not be put to an e-mail referendum? Such is democracy.

UNTOUCHABLES AT THE METROPOLITAN POLICE

 

by TheJusticeofthePeace @ 11. Oct. 2010. – 11:53:09

We don`t all read the Guardian. We might have pre-conceived impressions of its editorial drivers. But in common with all similar media when it prints news as opposed to commenting on such news we generally accept its accuracy . And when that news concerns comments by the Commisssioner of the Metropolitan Police it is not a waste of five minutes to read what he has said. And his comments reported yesterday 10th October certainly make interesting reading.

He is reported as saying inter alia, that he has privately lobbied the Home Secretary to make it harder for people to take legal action against his force. Not surprisingly this interview has provoked blogging comment in abundance so out of curiosity I had a brief look at the Met Police website at “latest news” and surprise surprise there was not a whisper of the Commissioner`s remarks. I then looked at Police Oracle, a widely read site for all matters to do with the men in blue. Once again there was no reference to the interview except by following a link in its newspapers links. Even Inspector Gadget amongst the most widely read blogs in the known world has not commented.

I find this deafening silence of some concern. Does it indicate that the lesser mortals in the police service are somewhat embarrassed that big chief Stephenson has raised an Aunt Sally of a target to be shot down when there are other pressing matters of concern eg preventing Islamic terrorists blowing up some more of us? Or is it a touch of collective conscience about fifty odd marksmen lined up to take out a drunken addict armed with a 50 yards range shotgun? Or perhaps that unlicensed untested tasers were unlawfully involved in the shooting of another admittedly dangerous man in Morpeth.

As the old joke goes; “Just because I`m paranoid doesn`t mean they`re not out to get me”. And if they do, and Mr Stephenson got his way he wouldn’t allow my family`s lawyers to have their day in court. Tell that to the family of Jean Charles de Menezes

SHADOW OF DOUBT

 by TheJusticeofthePeace @ 10. Oct. 2010. – 15:52:22

Before during and after appointment J.P.s have to jump through more hoops than a circus poodle. The list of “competences” required reads like a treatise on the correct behaviour with and use and disposal of a knife, fork and spoon at an Edwardian banquet with napkin use as an extra facility for those aspiring to head the table.

A chairman of a bench in my humble opinion has from experience and/or DNA the ability to do the job or s/he hasn`t. One of the most difficult tasks s/he has to cope with is that of a colleague who despite all the training seems unable to follow a structured pattern in decision making in deciding questions of fact ie is the case against this defendant proved or not?

Soon after becoming a chairman I was sitting on a matter of alleged assault by an ex Ghurkha on his wife. Having heard the evidence we retired to deliberate. In approved fashion we assembled the facts which had been agreed by both prosecution and defence and isolated the areas of disagreement before exploring the weight attached to these areas. My two colleagues each concluded that the facts proved beyond reasonable doubt that the defendant was guilty. I took an opposing view and proceeded to show how in my opinion if the facts were logically appraised there was sufficient room for doubt. I was unable to persuade my colleagues to my point of view. Accordingly I then wrote a preamble to our reasons which would be presented in court to justify the case having been proved. As I was about to ask my colleagues to dictate their reasons I passed the A4 pad across the table and said, “OK; you`ve found him guilty; please start writing your reasons.” James started to put pen to paper, hesitated and looking at Graham hesitated before they shook their heads in unison. They had not concluded his guilt on a logical structured basis. They had felt his guilt in their stomachs....a real gut feeling. There was a shadow of doubt. I agreed with them that he was probably guilty but that we could not be sure that guilt could be supported on the evidence we had heard.

I think that afternoon a lesson was learnt by all three of us.

EITHER WAYS ON THE WAY OUT?

 

by TheJusticeofthePeace @ 09. Oct. 2010. – 13:51:25

Either way offences can be tried at crown or magistrates` court. Magistrates [or D.J.] can accept or decline jurisdiction depending upon the seriousness of the charge and the possible disposal. Jack Straw commented at the last A.G.M. of the Magistrates` Association and others more recently that owing to long established quirks of the English courts defendants on either way offences can themselves choose trial by jury or summary trial in magistrates` court. He added that about 20,000 outcomes of such cases at crown courts resulted in sentences within the powers of the magistrates courts. The corollary is that this is a colossal and unnecessary cost to the exchequer.

There appear to be two reasons for this figure; either magistrates with the consent of their legal advisers are inhibited and too conservative in their interpretation of guidelines or judges are too lenient in their disposals. Of course there are many caveats. The CPS might be lax in their process of reviewing the case. The prosecution case at its highest might later be undermined by evidence for defence and/or mitigation for the defendant. A weak bench might be cowed by the prosecution. On the other side a judge might be mindful of pressures regarding the prison population. A case which seems to merit declining of jurisdiction by magistrates is by its very nature a relatively minor matter for a case hardened judge.

An example was heard recently at Teesside Crown Court where a violent domestic assault resulted in the perpetrator receiving six months suspended for two years and 150 hours unpaid work [community payback]. We do not know if a bench declined jurisdiction or jury trial was chosen by the defendant, whether he pleaded guilty at magistrates` court who sent him to crown court for sentence or whether he changed his plea on the day of trial. The fact is the disposal was within the powers at the lower court.

In no other jurisdiction as far as I am aware does a defendant have an opportunity to choose where to be tried . What is not in doubt is that within this parliament the nature and/or guidelines in dealing with either way offences will have been brought into the 21st century. If the change is not undertaken on the basis of legal argument it will be undertaken on the basis of saving unnecessary costs.

JUDGE BATHURST-NORMAN DISCIPLINED BUT NOT SACKED

 

by TheJusticeofthePeace @ 08. Oct. 2010. – 12:35:53

So Judge Bathurst-Norman has been disciplined earlier this week over comments made at a trial. I commented in detail on this unsavoury matter on July 20th. The reprimand is merely a slap on the wrist for this apology of an English judge whom one hopes will never be in a position ever again to preside over an English court. If a similarly phrased statement[s] as Bathurst-Norman`s had taken place in a magistrates` retiring room in deliberation over a case of [minor] criminal damage in all probability the J.P., who would certainly have been reported without any qualms by any right thinking colleague, would have been sacked.

There is no place for any hint of anti Semitism in public service and within the legal profession especially. This disciplinary action in itself will allow the maggots who deliberately conflate an antithesis with the policies of the State of Israel with the mere existence of Jewish people to insinuate yet again that Jews control this or that……..”that” in this matter being the “law”. I am indeed disturbed that Bathurst-Norman was not removed from his position on the bench.