REFUSAL TO SUPPLY DNA SAMPLE, PROBABILITY AND THE LAW

 05. May. 2010. – 16:32:17 

The Fingerprint Branch at New Scotland Yard was created in July 1901 using the Henry System of Classification. 

For many years previously various scientists and others had noted the basic structure of the human fingerprint; some had even mooted the possibility of its being used as an identifier. And as is well known a full fingerprint with all reference points matching is now considered to be literally foolproof evidence in a court of law. 

Police National DNA Database..........With the advent of DNA sequencing there is an increased acceptance of DNA matching as evidence in important legal cases. Mathematics has been used as a tool for all manner of human understanding and use in the courtroom is frequent.  The Sally Clark case is an illustration of how maths can go wrong in the wrong hands. The mathematics of matching various DNA samples in a legal context is based on explaining to a jury the chances of two samples of DNA; one from a crime scene and another from a suspect/defendant not belonging to the same individual. The art of making such explanations without compromising the statistical validity is akin to economists explaining to laymen the variations and resulting different  conclusions between eg Keynsian and Monetrist Theories. And as we all know statistics and economics can mean what the speaker, whether lawyer or politician, wants it to mean. Reading various analyses of probability/DNA/Courts can be interesting for those with a clear head. This is an interesting case which came before the Court of Appeal in 2006.

The retention for six years in England & Wales [three years in Scotland]  of DNA obtained from those arrested but never charged for an offence is a major issue for those concerned with civil liberties.  It is a criminal offence to refuse to provide a DNA sample when requested by a police officer.

According to the Home Office, the powers which give police the authorisation to take DNA samples can only be used on the ground that they have reasonable basis for suspecting that the individual committed the crime.  It was reported today that a man of previous good character who refused to give such a sample and admitted the offence was sentenced to a six month conditional discharge and £85.00 costs at North Lincolnshire Magistrates` Court. Now he has a criminal record and the consequences of such a record can be dire indeed. It is a moot point whether another disposal would have been more likely before another bench.  In any event how many of us with "a libertarian bent" would refuse if placed in a similar situation?

LAW LESS WITH TORIES

03. May. 2010. – 14:47:04 

As election day approaches those who decide to vote and those conscientiously deciding to abstain will base their decisions on many factors some founded upon the effects personally of their choice and/or what would be considered best in the interests of the country as a whole. The range of opinions of magistrates is as wide as the range of opinions of other intelligent life forms. 

Like others involved in the "law" we are more aware than most of the cascade of legislation that has poured from 10 Downing Street since 1997. By the latest estimates 4,300 new offences have been created in that period; 50 criminal justice bills have been enacted. By contrast between 1988 - 1996 494 new offences were created. D.Cameron has been quoted yesterday as saying that were the Tories to form the next government his first Queen`s Speech would include a "great repeal Bill" of Labour red tape and rarely enforced criminal offences. It is unlikely that those intentions were they to become reality would find objections from right minded folk. 

DRESS FOR DISCIPLINE

 01. May. 2010. – 11:08:22 

All organisations publish some sort of magazine or newsletter even if it consists only of a couple of stapled sheets of A4 or twenty lines on a home constructed web page. The Magistrates` Association with its 25,000 members is no exception and like many such publications its magazine’s “members` letters” pages are often the most interesting and thought provoking.

Over the past few months interesting correspondence has been published re the increased informality of some courts` design and the suggestion that the courts` authority might be increased by JPs` wearing of gowns. These are two subjects with a common link; the trend commonly known as “dumbing down”. Secondary school teachers were wearing black gowns a generation and a half ago; some still do; court ushers wear gowns, Crown Court barristers wear gowns and of course the legally qualified judiciary have gowns carefully graded to seniority. Lawyers in Magistrates` Courts appear in ”civvies”. Personally I don`t need a gown to exert authority but I accept that for some defendants appearing before gown wearing magistrates might help them to recognise the seriousness of the occasion and the court`s authority. On the subject of attire I would say that the declining formality of the female JP`s dress code is of more concern. Virtually all males wear suits usually dark in colour. Rarely does a female lawyer in court wear anything but the standard form of attire; dark suit and white blouse as do our female clerks. Not so some of my female colleagues. Coloured jumpers and tweed skirts and occasionally clothes more suitable on the golf course than on the bench are seen especially in the summer months. Quite clearly the large hat combined with twin set and pearls are as suitable today as is gas lighting but sometimes informality is taken a little too far…..in my humble opinion of course.

Designs of courtrooms vary considerably. The standard dais two or three feet off floor level allows members of the bench clear views and injects a certain psychological authority to the pronouncements. I have sat in courts where the bench is a simple table at floor level the JPs using typists` chairs. There are those who would approve and commend such informalities; I am not one of them. 

I recollect last year being shouted at by an offender,” Who do you think you are? What right have you to doubt what I`ve told you?” I replied pointing above me to the Royal Crest, ”The right that that coat of arms bestows on this court and this bench”. When physical trappings are not superfluous but have meaning they are a useful adjunct. 

So Speaker of the House of Commons John Bercow`s dispensing of his predecessors` predilection for fancy dress met with my approval. Similarly when the next parliament is opened let Black Rod keep her rod but throw away the velvet and get the black two piece out the wardrobe.

GANGMASTERS, COURTS AND THE LIB DEMS

 @ 30. Apr. 2010. – 10:46:15 

Like a few million others I watched the third leaders election broadcast last night. For those with a passing interest in politics I must admit there was little said or insinuated that was news to me except.....when clever clogs { I could`ve been a contender} Clegg stated for the third or was it the fourth time that his immigration policy of "send them to the colonies or was that regions" combined with tackling the gangmasters who place workers, legal and illegal, often in the agricultural industry made me sit up and take notice. The very term GANGMASTER evokes scenes of 19th century sugar plantations in the Americas. Having lived in an urban area all my life I know absolutely nothing about the employment of foreign workers except the ubiquitous Polish plumber who replaced my shower door, fitted some windows and did some simple electrical work a couple of years ago.

The Gangmasters Licensing Authority a late arrival to the list of Labour`s quangos was set up by the Gangmasters (Licensing) Act 2004. It became active on 1 October 2006 when it became an offence for labour providers in the agri-business industry to operate without a licence. In November 2006 it also became an offence for labour users to employ workers supplied by unlicensed labour providers. Furthermore, from 6 April 2007, the act was extended to cover the shellfish gathering industry – a sector reputed to be notoriously difficult to regulate, explaining why it was given slightly longer to implement licensing. In this industry, it is now also an offence to provide labour without holding a licence or for labour users to employ workers supplied by unlicensed gang masters. Its purpose is to regulate those who supply labour or use workers to provide services in agriculture, forestry, horticulture, shellfish gathering and food processing and packaging. It would appear to this amateur accountant that this quango is running a current deficit of £750,000 p/a.

Since its inception the GLA has revoked 39 licenses. In this organisation`s latest published minutes [meeting 13/01/10] no mention is made of prosecutions past, in progress or being considered. A flavour of the meeting can be obtained from this section quoted below:-

There has been an 80% increase in operational resource, with particular emphasis on working in hotspot local areas to generate intelligence and work with local agencies, businesses and worker representatives. Increases in back office staff have been kept to a minimum. LPs bemused that operational outputs continue to be compliance inspections, despite repeated announcements of a move from compliance to enforcement. More enforcement resource than envisaged is still required for compliance inspections due to the unexpectedly high volume of new applications. In addition, application inspections now often involve more complex investigations and therefore take significantly longer than in the past. While additional enforcement officers have been recruited in recent weeks, the process of fully training and incorporating these is ongoing, and their contribution is expected to show results over the coming months. Despite placing greater emphasis on enforcement, the GLA must continue to monitor compliance among licensed businesses and ensure that standards do not slip. Additional enforcement officers have been recruited on 12 months contracts purely because funding could not be guaranteed beyond 2011.

Earlier this year on January 29th the first prosecution took place when a Scottish fruit farmer became the first person to be convicted for using an unlicensed gangmaster based in Bulgaria to supply 250 workers to pick fruit. The gangmaster of course could not be prosecuted. But an important purpose of this legislation is that the end user must be deterred. He was fined £500. No information is available regarding prosecution costs. The maximum penalty for operating without a licence is 10 years in prison and a fine. The maximum penalty for using an unlicensed Gangmaster is 6 months in prison and a fine. So our Scottish farmer received in my opinion a rap over the knuckles from the Sheriff at Perth Sheriff Court but at this distance with limited knowledge intelligent further comment on the adequacy of the fine is impossible.

On 15 April at Peterborough Magistrates Court a Cambridgeshire based gangmaster was sentenced for operating as a gangmaster without a licence. He was fined £300.

Unless I am deaf, dumb and blind and play pinball all day long this is the organisation that the Lib Dems are relying upon to protect us from the "criminal gangs" profiting from the misery and political cancer of illegal immigration.

INNOCENT UNTIL PROVED GUILTY??????

 25. Apr. 2010. – 15:45:53 

Innocent until proven guilty! Most people would acknowledge this is the "British way" of doing things. Punish the guilty when they`re proved guilty........in your dreams......DNA taken from innocent suspects during an investigation is currently held for six years; on the sexual offences register there is a very small number of people who have not been convicted whom the police and other agencies believe are potentially dangerous. This list will cover some people with mental health problems and suspects believed to be a public risk but about whom there is not enough evidence to secure a conviction. A domestic violence protection notice can be obtained against a partner who has not been convicted of any crime. 

Earlier this year an unnamed police force informed the General Optical Council, the long established quango charged with overseeing the optical profession, that an optometrist charged with possessing indecent images of children should be subject to an unspecified interim order but assumed to be suspension from the Opticians` Register. The unnamed optometrist had pleaded not guilty at a Magistrates` Court and will face jury trial at the Crown Court. The Fitness to Practise Committee of the G.O.C. turned down the application on the basis that there was very limited information on the alleged offence[s] and therefore no justification in making the order. Thus a professional man whose status is "innocent" is allowed to continue to earn his living a facility that would have been denied him had he been suspended. A point of concern is that the chairman of the committee said a further application for an interim suspension could be made if more evidence became available. 

Freedom of the individual in its widest form and safety and protection of those in society has been a balancing act for centuries. I would venture that the "health & safety" mentality we have experienced in the last two decades is moving the fulcrum of the "innocent until guilty" debate considerably in a direction which indicates that the culture of this country is considerably more authoritarian than is healthy in a democracy. I fear that nothing said before or after May 6th will alter that.

MAGISTRATES AND BAIL ON MURDER CHARGE

 22. Apr. 2010. – 11:42:58 

Although some might comment that there is much that needs to be done about the performance of some criminal lawyers there is absolutely no doubt in my mind that especially since 1997 they have had to regularly absorb and apply increasingly vast amounts of new information produced by umpteen changes to the criminal law. Failure to follow correct or appropriate procedures can have dire consequences. 

Pre trial Bail is an area of the criminal justice system where judgement of the possible future actions of, at this stage, an innocent person has to be made. This is a matter where every day thousands of such decisions are made at Magistrates` Courts. I was going to add, "including bail in murder charges" but since 10th March [para 168 below] this would now be reserved for judges at Crown Court. CPS guidance below.

165. Section 114 amends Schedule 1 to the Bail Act 1976.

166. Section 114(2) provides that bail may not be granted to someone charged with murder unless the court is of the opinion that there is no significant risk that, if released on bail, that person would commit an offence that would be likely to cause physical or mental injury to another person. Furthermore section 114(3)(a) states that the court in deciding whether there is no such significant risk, must have regard to any relevant considerations as stated in paragraph 9 of Part 1 of Schedule 1 to the Bail Act 1976. Section 114(3)(b) amends paragraph 9 in relation to bail decisions where the alleged offence is imprisonable and triable in the Crown Court. This section provides that, in deciding whether to grant bail in a case where the court is satisfied that there are substantial grounds for believing that the person would commit an offence while on bail, the court must have regard to the risk that such further offending would, or would be likely to, cause physical or mental injury to another person.

167. Section 115 of the Coroners and Justice Act 2009, provides that where a person is charged with murder, bail can only be granted by a judge of the Crown Court. The power of the magistrate's court to consider bail in murder cases, whether at first hearing or after a breach of an existing bail condition, is now removed.

168. Where a person charged with murder appears or is brought before a magistrate's court, a bail decision must be made by a judge of the Crown Court as soon as is reasonably practicable, and in any event within 48 hours (excluding public holidays) beginning with the day after the person's appearance in the magistrates' court. If necessary the person must be committed in custody to the Crown Court to enable a bail decision to be made (see s115(4)). It is immaterial (see s 115(5)) whether that person is at the same time sent for trial or being remanded following adjournment of proceedings under section 52 of the Crime and Disorder Act 1998, which requires a defendant charged with an offence only triable in the Crown Court to be sent by the magistrate's court to the Crown Court forthwith.

It would appear therefore that JPs will no longer have to decide on bail for those charged with murder. In any case it was a rare occasion. I have sat on only three such occasions and so such events remain fixed in my memory.

Prior to my sitting where I do now I was on the bench when in 2001 Patrick Nolan was brought to court and charged with the murder of his wife. The facts as they were presented at the time were that he had killed his wife twenty years previously and buried her under the foundations of a new hospital building where he worked on its construction. I believe, although I am not sure, that at the time he had no history of serious criminal activity. He pleaded not guilty and we retired to consider his application for bail. As I recall it was not an instant decision. We spent quite some time discussing it because even on the most serious of all offences bail had to be a possibility. We concluded that for various reasons bail would be refused and he was remanded in custody and eventually found guilty and given a life sentence.

I cannot say I am unhappy that this power is no longer available to me as a magistrate. Just as our sentencing powers are limited to six months` custody and could reasonably be extended to double that on the other hand the removal of our jurisdiction to sit on bail decisions on the charge of murder is not unreasonable

AN ODD WAY TO GET ON THE SEX OFFENDERS` REGISTER

 21. Apr. 2010. – 11:56:06

There are some occasions in a Magistrates` Court after a prosecutor has opened a case with a description of the facts  when, however serious  the matter  is, one has an underlying mental scene of such a farcical situation that it is difficult to suppress a smile.  I suppose this is the basis of much comedy; Monty Python and Not The 9 o`Clock News come to mind.

It is reported in the Rochdale Observer that a man attempted to tease a dog in the yard next to where he was standing by putting his genitals through the fence separating man and beast. Perhaps the financial penalties he suffered and being placed on the Sex Offenders` Register for five years will teach him to keep his best friend where it should be and not to use it to tease man`s best four legged friend.