EXCEPTIONAL HARDSHIP IN RELATION TO DRIVING DISQUALIFICATION

 11:02:22 by TheJusticeofthePeace

Magistrates know all about exceptional hardship as it applies to driving disqualification……….or at least they should know and if they are deficient in that department their legal advisers ought to know. However the Sunday Times in its article on this subject yesterday threw some doubt on those assumptions. As that newspaper is now behind a paywall no link can be given but I can list below the two salient facts the newspaper quotes.

I devoted my blog of May 15th to this topic. What follows is a more detailed analysis.

Legislation regarding disqualification for totters allows magistrates not to disqualify or to reduce that period only if they are satisfied having regard to all the circumstances that there are grounds for mitigating the normal consequences of the conviction the most common of which put forward is the potential effect of the disqualification on the offender namely that hardship would result. Section 35{4}(b) of the RTOA 1988 precludes the court from taking into account “hardship, other than exceptional hardship”. There is no strict definition of this term.
The Sunday Times amongst other things quoted the following facts:-
31,110 drivers disqualified for reaching 12 points in 2009
11,228 is the number of drivers reaching 12 points not disqualified in 2009

Practice suggests that the loss of employment by itself is unlikely to satisfy the “exceptional” test. Some judicial guidance can be found in the Scottish case of Brennan-v-McKay (1996) 1997 S.L.T. 603. A taxi driver reached 12 penalty points on being convicted of speeding. He claimed that he would be likely to lose his job and be unable to obtain other work and this would have a substantial effect on his family. The High Court of Judiciary held that the justices were entitled to conclude that exceptional hardship had not been demonstrated. Whilst it was not an invariable rule that exceptional hardship would only be established where persons other than the accused and his immediate family would suffer it was ruled that it was necessary to demonstrate that there were other circumstances associated with loss of employment which might involve reflected hardship of a serious kind on the accused`s business, his family or his long term prospects [per Lord Hope in Brennan-v-McKay].

It is important to note that offenders may not put forward the same circumstances which have been used either for not disqualifying or for reducing the length of the totting up disqualification within three years of conviction {sec. 35(4)(c) RTOA 1988} It follows that detailed court records must be made of the exact circumstances which justified any finding of exceptional hardship.

From the above figures more than 26% of drivers accumulating 12 points were allowed to continue driving under the exceptional hardship guidance. From my own experience I find that ratio astonishing. The conclusion on the surface appears to be that misplaced application of the guidance is possibly being applied. Perhaps more formal guidance is required from our lords and masters.

DISQUALIFICATION IN ABSENCE

 12:49:05 by TheJusticeofthePeace

When I were a lad and you couldn`t go down the mines until you were twelve years old …..when you could take a knife into the street and give it to a grimy man treadling a machine that resembled your grandma`s sowing machine and he would sharpen it for sixpence…..when every few months the totter would stop in the street, give his horse a bag of hay and ring a bell for any old clothes or what have you for which he paid a few pence or a shilling or two if you were a haggler. These days epitomised in the series Steptoe and Son arguably the best comedy characters ever on T.V. came to an end about twenty years ago even in Shepherds Bush. 

Talk of a totter nowadays and it means one thing and one thing only…….somebody disqualified from driving for collecting 12 penalty points within a specified period. A moot point is the act by a court of sentencing in absence, i.e. when for whatever reason the defendant is not in court to hear the pronouncement. Where I sit and in line with my personal preferences we do not do this on a matter of issuing a driving ban. If the summons to appear is disregarded a warrant is issued. However that is not mandatory practice. 

A couple of weeks ago we had before us Kevin, mid twenties, who would probably describe the term “good night” as downing ten pints and finding his own way home. He was unrepresented and appeared before us on a charge of driving whilst disqualified and consequently also charged with driving with no insurance. All insurers have clauses in their policies which render the policy null and void if the driver is not qualified to drive. When asked to plead his reply was “Not Guilty”. When he was asked on what grounds he was so pleading he told us he didn`t know he was disqualified and after gathering what wits he possessed he produced a letter from the court involved enquiring about the non payment of £200+ in fines and costs for the original offences for which he was disqualified some four months previously. It was explained to him that ignorance of the law is no excuse for breaking it. Unsurprisingly he changed his plea to Guilty when he was told the benefits of avoiding a trial at which he was unlikely to be acquitted.

Because Kevin declared he was on Benefits we were obliged to consider his income as £100 per week and with his plea he was fined a week`s “wages” i.e. £100 plus costs and a lesser amount for the no insurance. He had a further disqualification period of six months imposed. 

For various reasons there was no sympathy on the bench for Kevin and his assertion that he was unaware because he had not received intimation of the hearing at which he was disqualified. But it is not difficult to imagine a scenario where such sympathy might exist. Courts which do not follow our practice should consider doing so. Justice must not only be done it must be seen to be done and that in my opinion includes ceasing the procedure of disqualifying in absence unless under the most extreme of situations where the alternative is not practicable or puts the public at risk. 

COMPLAINTS AGAINST THE POLICE

 15:23:05 by TheJusticeofthePeace

Anyone whose career or job involves direct contact with members of the public, [ and I include myself in this group] as opposed to being hidden away in the corner of an office with a keyboard his/her only contact with the outside world, is well aware of the pressures that can arise when confronted with irrational, bad tempered, depressed, ignorant or violent people and that`s on a good day. 

When that job is as a police officer the temptations to use the authority of the uniform when, as is a major part of policing, in a confrontational situation, must be considerable. More than once I have encountered rude police officers who have adopted a threatening attitude because I have politely questioned an instruction whether sitting in a car whilst somebody is emptying the boot or some other equally innocent and seen to be innocent activity. It is when in contact with law abiding citizens that a police officer is most likely to be perceived as unnecessarily aggressive. The trouble is that when the job requires dealing with villains who could be peaceful one moment and uncontrollably violent the next a distinction between them and the rest of us must be difficult.

And so it seems for 2000 of the men in blue. According to reports in today`s Belfast Telegraph and the BBC that is the number of police officers who have had three or more complaints made against them in the last year. There are about 160,000 police officers in the U.K. so it is a fairly small proportion of the whole. 

This information was made under a Freedom of Information request. Why on earth do authorities such as the police force in general not make public this type of information without its having to be dragged out of them? That truly would increase people`s respect for those organisations complying. 

I note that a certain Mr T.Blair has been quoted from his newly published memoir that of his time as Prime Minister the F.O.I. Act is one of his regrets. He says it is not practical for good government. Given that most libertarians would assert that the F.O.I. Act was one of the most significant innovations of recent times for the ability of the individual to challenge an authority gone awry this revelation is quite amazing for a Prime Minister who presided over the most authoritarian government since 1945 that Act being a notable exception which did not prove the rule.

FOOTBALLERS PLAYING AWAY

 31. Aug. 2010. – 16:38:40 

It seems it`s as natural for a famous wealthy Premier Division footballer to play away from home as it is to have at least a Ferrari and a Range Rover in his garage. But sometimes he leaves his garage door open when it should be firmly closed. 

So the third England footballer in recent months [not Mr D.Beckham] has successfully sought an injunction to keep his identity secret with regard to alleged shenanigans, doing his bit for England, something on the side or whatever slang is favoured for the description of somebody`s bedroom frolics becoming as widely known as the frolicker himself is known. And that`s the rub………how well known must the individual be before he is availed of this cloak of invisibility? With footballers is it a case of measuring the column inches written about them and anything less than two feet in the last twelve months has no chance of convincing his honour. For those playing in the Championship, have they lost any possibility in such a circumstance unless they play for a newly relegated team? The legal arguments are for others to comment upon but in my humble opinion those who leave their garage open and who live by the sword of public exposure should die by that self same sword. 

CRIMINAL LIFE IN 2010

 30. Aug. 2010. – 23:07:46 

There is a dearth of interesting news and other pressing matters over a Bank Holiday but viewed collectively a few snippets noticed over the last week or so arguably provide a greater insight into the criminal activity that takes place day in day out in every village, town and city in this country than the headline events.

I discussed drugs in prison on January 31st. A recent report concerning Craig Inches prison in Aberdeen commented upon by Shadow Scottish Justice Minister and North East MSP Richard Baker revealed that drugs finds at Craig Inches have doubled over the last 3 years. Of course the conclusions are perverse. With a fixed amount being brought in to the prison it could be said that detection and seizure have improved considerably but as the usual opinions are that drug seizures are a relatively fixed proportion of the total smuggled amount, in such a situation one might reliably conclude that the problem is getting out of control in this prison especially when the increase nationally of such seizures is just 12%. It is difficult to dismiss the thought that the prison drug problem in general is not a problem for those running prisons. In simple terms if there is not the will there is not a way. 

As somebody who has been for some years in favour of the de criminalisation of drugs nothing seems more to articulate the case that hard drug users require a medical intervention and not a legal one than the case reported at Blackburn Magistrates` Court where Kenneth Young was imprisoned for his 183rd offence. Cases such as this should be on the desks of cabinet ministers responsible for our health and law and order.

It seems that the difficulties of the European Extradition Treaty about which I commented on August 23rd are not just one way. Our European Union associates` justice systems are being utilised in all their majesty to extradite low level criminals to their homelands where justice is waiting for them. It seems this reciprocity is at the British tax payers` expense. There is an interesting report in The Telegraph.

Since increased resources from all directions have been focussed on domestic violence the impediment often preventing justice being done is the same as it always has been……the reluctance of the injured party, usually but not exclusively female, to give evidence against the male perpetrator. Bringing such cases to court involves the judgement of the CPS; their task is certainly difficult. How many cases fall at this hurdle I obviously don`t know. A clear example of such a case both resulting in a conviction and the complainant re-uniting with her guilty partner was heard at Croydon Crown Court. The defendant had pleaded guilty and the assumption is that magistrates had sent him to the Crown Court for sentence. The disposal suggests they could have saved the state money by retaining sentencing but that`s another matter for another time. 

Interestingly enough the Manchester Evening News reports that there were 28,493 reports of domestic abuse in the Greater Manchester area in the first six months of the year. How many ended in court proceedings is unknown. Perhaps the recent speculation that there is some evidence that Neanderthals bred with early Homo Sapiens in or around Old Trafford when the home team lost has some truth to it. 

And this is criminal life as we have come to accept it in 2010.

3000 NEW LAWS AND STILL IGNORANCE IS NO EXCUSE

 

29. Aug. 2010. – 11:04:13

The old adage, ignorance of the law is no excuse, might have been applicable when it was first coined 2000 years ago but at a time when according to the Law Commission 3,000 criminal offences were created between 1997-2010 it might have increased substance as a defence in theory if not in practice.

From my experiences in court I am of the opinion that some of the non police uniformed figures telling us where we mustn`t wait, where we can`t walk, what we can`t wear, what we can`t drop, where we can`t cycle etc etc rely on their scanty knowledge of a tiny bit of law to persuade, frighten, threaten ordinary citizens to do or not do what they are told to do or not do. But for that to be more or less written into the system is unacceptable. The case of CPS-v-Jolly AER 20 [May] in allowing a police officer to explain to a driver who has provided a breath sample of < 50mg that it can be substituted for a blood or urine test by simply reading the words on the form without explanation is in my opinion restrictive but who am I to argue?

CAN THE FRONT LINE STAND A 40% HIT?

 28. Aug. 2010. – 15:19:22 

A few years ago a new class of CPS prosecutor was introduced to the magistrates` court system; the DCW dedicated case worker. That`s “dedicated” as restricted to a specific function as opposed to “dedicated” meaning wholly committed . Upon their introduction CPS assured all who cared to listen that they would be used as the definition specifies for functionary activities within strict limits as laid out by their reviewing lawyer eg bail applications. Now it has been decided that soon they will prosecute trials. 

But to return to bail applications…….a couple of months ago a South African man appeared having been charged that between……2006 and……2010 at…….dishonestly obtaining a pecuniary advantage , namely that you were given the opportunity to earn remuneration in an employment by deception insofar as you falsely represented that you had leave to remain and right to work in the U.K. contrary to sect.16[1] of the Theft Act 1968. This gentleman pleaded Not Guilty and the pertinent facts as we heard them were that he used a false passport and accompanying documents in the alleged offence which involved £100,000 in earnings received during the period in question. When it came to bail the DCW told us that since the defendant had recently married a U.K. citizen and had had a child by her he was not a flight risk and therefore unconditional bail was not opposed. This was of course endorsed by his counsel who covered himself by adding that if we were so minded his client could sign at suitable time[s] at the local police station. In view of the facts we were surprised. We imposed a condition that in addition to signing once a week he surrender his passport which he had with him and that in itself was almost farcical in its application. Our L.A. told us he would have to formally be seen by the jailers in the cells and the passport taken from him there. That procedure was required, according to the L.A., because, in spite of his waving it about, if the passport were not with him he would have had to be taken to prison until it were made available. Five minutes later the defendant re-appeared and the Serco person told us that it wasn`t their job and they wouldn`t do it. The L.A. repeated that she couldn`t take the passport. The Bench then suggested she summon one of the duty police officers. He duly appeared and told us he was not sure it was his job. “It`s the court`s job”, he replied. “Well”, said the chairman,” you`re an officer of the court; take him downstairs, take the passport and give him a clearly written and dated receipt.” The previous case that afternoon had involved an East European complaining inter alia that his passport previously handed into us a year ago on another matter was apparently unavailable and nobody knew anything about it. 

And all this in a typical day when lawyers still conduct trials and 40% cash reductions have yet to hit the front line. When the brown effluent hits the fan heaven help the front line. 

AT THE BEGINNING

This diary was begun in 2010. My reasons for so doing were published here on October 22nd 2021. For those reading this I feel it`s time to publish for only the second time the reasons behind my undertaking this active memory written when I was in a position to be able to act on my own judgements but keeping within the law and the honesty expected of a Justice of the Peace. 

OCTOBER 8TH 2010

INTRODUCTION  
My latent interest in the law  was perhaps instigated by both a wife and brother who were solicitors  and a father who felt overlooked in his application as a J.P. many years ago.   Having been a professional all my working life by my mid-fifties I felt intellectually and financially able to devote myself to a second career albeit unpaid and part-time. I was appointed a Justice of the Peace in 1998. During my long career as a self employed eye-care professional I learned quickly to communicate with people of all ages and backgrounds. On reflection I`m convinced that facility proved essential to be able to follow to the letter the Judicial Oath: “I do swear by Almighty God that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of Justice of the Peace and I will do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.”  With much current criticism of the magistracy over so called diversity that oath alone should be enough to ensure that all those who come before the bench are treated not as black or white, rich or poor but as a subtle shade of grey.  Unfortunately the perception at least does not bear out that ideal.  

The first few years of this millennium were a time of great change for the magistracy insofar as its flimsy hold on independence was firmly trampled upon by a recently elected government seeking to incorporate under its umbrella the various strands loosely affiliated as our justice system.  This culminated in the formation of a dedicated new department known as the Ministry of Justice.  Further developments led to the magistrates courts and those working within them to be part of yet another amalgamation of departments; Her Majesty`s Courts and Tribunals Service. 

Recent statistics showed that in 2020 there were 13,177 magistrates - though the Ministry of Justice announced that in September 2020  this number had been overestimated by around 1,000 which was an appalling error. Other statistics of note are that currently 56% of JPs are women, 13% are BAME and 82% are aged 50 or over. There are clearly various factors which contribute to these figures though they are too complex to discuss in this short introduction. 
 
During my first decade as a JP when I became what is now termed a ‘presiding magistrate’ colleagues seemed to appreciate my independence of mind both on the bench and in the retiring room. Although I never aspired to the loftier heights of ‘Chairman of the Bench’ a couple of small achievements seem worth mentioning here. I reinvented my bench`s approach to the approving of warrants issued by utility companies and I amended the treatment of fare evaders by the local transport systems.  Both areas had been in dire need of a more level playing field for defendants but for one reason or another no one had grappled with them until then. 

In November 2009 I put a colleague`s suggestions that I could offer my opinions on the workings of the magistrates` courts and a JP`s perspective of the justice system to a much wider audience through writing a blog and so was born The Justice of the Peace (Magistrate`s) Blog. Some of these musings, on everything from sentencing procedures to the police and to other matters of legal interest are now reproduced for this diary exactly as they were published in my original website in 2009/10  the host of which went offline in 2013.  Names and or positions of any persons have been changed when appropriate. 
 

WHEN IS A LAMPOON ILLEGAL?

 27. Aug. 2010. – 11:47:56 

Robert Peel; he who conceived the idea of a police force as we now know it, had as his objective the prevention of breaches of the peace and its natural consequence, the maintenance of public order. I doubt that in the early 19th cent. peeing in public was a criminal offence when the term public decency had yet to be uttered except when the legs of the piano according to legend were left uncovered. 

So it was no surprise to read recently that Wendy Lewis, who desecrated a war memorial by urinating on the Blackpool Cenotaph , was given a 15-week prison sentence, suspended for a year. But what followed was a surprise although in retrospect perhaps not considering my blog of April 4th this year. But of that later.

A supporter of said “lady” is alleged outside the court building to have given a Hitler salute and made with his finger the universally accepted joke Hitler moustache a la John Cleese and Monty Python. For this alleged offence of using threatening words or behaviour to cause harassment, alarm or disorder he will shortly appear before the local bench. I would find this disturbing if when the facts emerge the only behaviour alleged to be threatening were the salute.

Re-enactment aficionados have been widely criticised for the use of nazi and SS death head regalia including swastikas. The opposition to the use of Wehrmacht uniforms has been muted and that is because there is a historical difference between “the ordinary German WW2 soldier” and “nazis” or so we are informed. There is no Holocaust denial legislation here as there is in Germany. The subject can be discussed and the David Irvings of this world can be shown up for what they are; nazi apologists. Be that as it may, in this country there is no law against the lampoon. There is however a legal back passage through which such restrictions are being enforced…the Mohammed cartoon of infamous memory was perhaps the most memorable. On 4th April I blogged that Section V[1] and [6] of the Public Order Act 1986 is being used as a “catch all”. A WW2 veteran was convicted for goose-stepping to indicate his opinion of the actions of Police Community Support Officers. 

That greatest of all clowns a certain Mr C.Chaplin in his film The Great Dictator 1940 lampooned Hitler to perfection and was instrumental in bringing home to a pacifist America just what the evil of Nazism was all about. He did it with humour. 

If the symbolic nature of a Nazi salute as a mark of contempt by a person for [in his opinion] the unreasonable authoritarian actions of a public body or a uniformed officer, is in the process of becoming a public order offence per se let it be shouted loud and long from every police headquarters in England…..seig heil!

J.P.s RULE OK

 26. Aug. 2010. – 17:00:24 

They used to be called [learned]“justices` clerk” but are now known as [learned] legal advisers. They were once known as Magistrates` Courts and still are. “J.P.s rule O.K.”

Advisers advise and magistrates decide or so is the theory. In my time on the bench as winger and chairman I have noted bench chairmen thankfully abrogating everything possible to their legal adviser. As much of the work in open court that could be done by either the chairman or the L.A. was seconded to the L.A. It even extended to the retiring room where many colleagues retiring to consider a verdict would invite the L.A. to join them almost immediately. Most would keep at some physical distance but there were occasions when advice would be offered, in my opinion, inappropriately whether in timing or content. Legal advice of course should always be proffered in court before the bench retires.

I would not echo their honours who usually refer to it as my court but I have always considered that with few exceptions a bench chairman should in a judicial fashion be in command of the court. It follows that a chairman and a L.A. who are confident in each`s ability and authority usually can be seen by a fly on the wall to conduct an efficient flowing courtroom be it remands where there is never enough time to complete a list, a trial or one of the many variations of justice being seen to be done over which we preside. So it is unusual for a bench to overrule its L.A.

Re-reading my post earlier this week on Judge Shorrock`s verbal bollocking from their Lordships for speaking out of turn reminded me of an incident which required this writer also to speak out of turn with the total agreement of his colleagues.

The defendant had been charged with criminal damage the week previously, been remanded in custody and was before us for another bail application. He was unrepresented. His English was poor but adequate. He was Moslem. He was asked by the L.A. to identify himself ……….silence; the request was repeated with the same result. Our L.A. turned to the bench and whispered that according to the file the previous appearance had had the same result. In the circumstances I asked for identity using a closed question…..are you?…..let`s call him Mr. Ali…… He nodded and repeated the gesture with regard to the other identifying questions. Since he was on remand to be tried about three months later I asked if he had spoken to the duty solicitor; no reply….. at which point our L.A. stated that he had refused to see the duty on the previous occasion and also had refused the opportunity to talk to the consultant psychiatrist whose duty day this was. He again did not answer when he was offered the duty solicitor. He was told that if he continued in the same manner he would be in prison until his trial, a longer period than he was likely to be sentenced to if he were found guilty. No response……our L.A. gave us the date and the pronouncement was made of his being remanded in custody until…..but that he would be before us again in twenty eight days. Down he goes to the cells and a moment later our L.A. tells us the trial date must be changed because CPS had just noticed the complainant in the case was on holiday. Notice of trial dates must be made with the defendant present so the call was made to bring him up again. Two minutes later the jailer emerges alone to tell us that it is time for his prayers, he will not come up and that Allah will provide. And this is where we parted company with our L.A. for she told us that we had no option but to go to the cells to pronounce the amended date. After three pairs of eyes, one pair Moslem, one pair Roman Catholic and one pair indeterminate blinked in astonishment we dismissed the suggestion. We told the L.A. to write a notice duly signed by herself to be handed to the defendant. She did not for a minute demur. At the conclusion of the sitting we informed the Deputy Justices` Clerk of our actions and she agreed that our pragmatic approach was perfectly acceptable in the unusual circumstances.

Justices of the Peace are appraised for their competencies every three years or so but an appraisal in my opinion is akin to deconstructing the act of running into its various sections and expecting the resultant description to resemble an active Lynford Christie. It doesn`t. There are some situations for which preparation is useless and where life is the only teacher. Thankfully in the public arena that is a Magistrates` Court they are few and far between. 

ALL`S WELL IN LOVE, WAR & POLITICS

 25. Aug. 2010. – 11:40:42 

Three months on and the new government has a couple of months to gather its thoughts as do the M.P.s whose election arithmetic forms the basis of the coalition. But as well as being cannon fodder for government as were many 1997-2010 this new cohort shows every possibility of thinking for itself and as individual representatives of putting constituents above party interests. And nowhere so early in the game is this being shown than on the contentious subject of court closures led by old time survivor Kenneth Clarke.

There are those on the government payroll who have voiced opposition to the closure of their local court. Ministers Iain Duncan Smith, Andrew Mitchell, Edward Garnier and Ed Davey have all voiced their opposition. This will certainly prove interesting when the final list of courts to be closed is published. M.P.s in general and opposition M.P.s in particular are certainly making hay whilst the sun still shines on this subject. After all they are kicking at an open door. 

It would take big cahones as they say in Spanish for a prospective candidate to support closure of their local court. It`s not surprising that much rubbish is being infiltrated into the “keep them open” argument. 

An example is reported in the Liverpool Daily Post from Maria Eagle, the Garston and Halewood MP. She asserted that victims of domestic violence will suffer by such closures. It is uncontroversial that increasing travelling time to a court hearing will deter a certain number of witnesses from appearing but she has claimed in effect that closing twenty courts where such cases are heard will increase domestic violence. The good lady should do her homework. A “Domestic Violence” court is not a court building where only such matters are dealt with. It is the designation on a given day or days when such cases are heard by court officials who are delegated to that subject in a particular courtroom specially equipped with eg screens, video equipment and protected dock. To put the frighteners on her constituents as she appears to be doing does a disservice to them and herself by jumping on a bandwagon which is rolling along well enough without her input. Miss Eagle as a former Minister in the Ministry of Justice should know better. Although having said that, on 17 May 2009 the Daily Telegraph revealed that she had claimed £3,500 for the refurbishment of the bathroom of her Liverpool home property, then switched her second home designation to a different property just four months later. Miss Eagle showed her feelings for open honest government when according to Wikipedia she voted in favour of legislation which would have kept MPs expense information secret.

All`s well in love, war and politics.

CUSTODY THRESHOLD AT MAGISTRATES` COURTS

 24. Aug. 2010. – 16:12:51 

It is not all that often that the Magistrates` Association`s house magazine “Magistrate” has an article that offers information on an important topic about which I am totally ignorant and as memory serves me has never ever been alluded to in a training session or at any time by a legal adviser when I have been involved in a sentencing bench. 

Such was a colleague`s article entitled “Looking closely at custody” in the current issue. Before continuing it is helpful to know that the sentencing structures at courts were formulated under the Sentencing Guidelines Council in 2004 in order to achieve a certain logical approach to sentencing and to avoid the appearance of “post code sentencing”. That effort has not, in my opinion, been unsuccessful. This organisation in the spirit of the tendency for governments to think up new names for similar structures is now The Sentencing Council. 

Returning to the subject, all sentencers must justify their sentences in open court and explain why custodial sentences especially are the only possible disposal in such cases. It is by such hurdle jumping that relatively few custodial sentences are made at Magistrates` Courts. However the article in question referred to a document published 16/12/2004 by the Sentencing Guidelines Council…..”Overarching Principles: Seriousness”. I had never known of this until opening the magazine. Its content had never ever been mentioned by name in my presence by anybody at any time although the principles are familiar. The important conclusion is that even when all the hurdles have been taken and custody appears to be the only option there should be a final discussion as to whether even a suspended custodial sentence can be avoided even although by a structured approach there is no other sentence but immediate custody which can be justified.  Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable and custody can still be avoided in the light of personal mitigation or where there is a suitable intervention in the community which provides sufficient restriction (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime. For example, a prolific offender who currently could expect a short custodial sentence (which, in advance of custody plus, would have no provision for supervision on release) might more appropriately receive a suitable community sentence.

The SGC as mentioned above has been superseded by the Sentencing Council. In the light of current political pressures I am surprised that this document has not been brought to the attention of magistrates; at least not this one nor his bench

SHOULD CELEBRITIES BE FINED ACCORDING TO THEIR MILLIONAIRE MEANS?

 24. Aug. 2010. – 13:57:45 

It`s unusual to comment on offences in far away jurisdictions of which we know little but the case of Lewis Hamilton`s four wheeled escapade on the public roads of Melbourne Australia is interesting not for the reasons for behaving like a Jack-the-Lad instead of one of the best racing drivers this or any other country has produced. No; it`s because even as a defendant with presumably no record of “previous” down under he was fined the maximum possible under Aussie Rules at Melbourne Magistrates` Court for what they term “hoon” or reckless driving when he was fined the maximum amount of $10,000AUID; about £5,725. 

Although I have no experience of having a multi millionaire sports star before me [they are usually reserved for the DJ…bah humbug] it is rare to read of individuals of such worth being fined the maximum possible for driving offences which do not cause injury. Careless driving attracts a maximum of £5,000 + possible disqualification. In January, a Swiss driver was fined $290,000 - the current world record. When an offender is caught speeding Swiss law takes into account the wealth of the driver and the speed recorded. 

When individuals` wealth is measured in tens of millions even disqualification does not bring the same inconvenience as it would to most of us. Drivers can be hired for as long as needed. Perhaps we have something to learn in this regard from the clock makers.

A CLEAN OUT OF THE STABLE OF A BANANA KINGDOM

 23. Aug. 2010. – 11:20:31 

Prior to reaching my current state of cynicism and when I was naïve enough to believe that although I might disagree with conclusions or political intent I did assume that governments had sufficient input from wherever it was needed that the repercussions of proposed policies would be thoroughly investigated. In addition apart from Profumo and Rotten and Pocket Boroughs of the 19th century I thought most politicians were an honourable lot. How foolish I was.

The last few days have had three decisions of the Labour government more or less shredded. The legal arguments have been and are being put by those whose knowledge base is infinitely greater than mine and I do not propose to go down that route.

I have previously extolled the website Big Brother Watch. Many of its revelations have concerned the operation of the Regulation of Investigatory Powers Act. This legislation was criticised by many but of course the Labour government with its huge majority steamrolled it through parliament under the watchful sightless eyes of David Blunkett a cabinet minister who was twice forced to resign for conduct that was not exactly befitting that of somebody in his position. Recently he was quoted as having remarked that he hadn`t foreseen the manner in which the legislation would be applied. We have been promised by the Coalition that the powers of local authorities to employ this Act to the detriment of the privacy of the individual will be curtailed. 

The European Extradition Treaty is another example of sign up and consider later. Whilst Wikipedia is not the last word in accurate information the following extract makes useful reading;

Exemptions in the European Union

The usual extradition agreement safeguards relating to dual-criminality, the presence of prima facie evidence and the possibility of a fair trial have been waived by many European nations for a list of specified offences under the terms of the European Arrest Warrant. The warrant entered into force in eight European Union (EU) member-states on 1 January 2004, and is in force in all member-states since 22 April 2005. Defenders of the warrant[who?] argue that the usual safeguards are not necessary because every EU nation is committed by treaty, and often by legal and constitutional provisions, to the right to a fair trial, and because every EU member-state is subject to the European Convention on Human Rights[citation needed].

Perhaps in the light of recent experience some of the 232 newbie M.P.s will attach as much importance to the scrutiny of new legislation as to their attempts to ascend the greasy pole?

The Kelly affair has reached a pitch which in my opinion hammers another nail into the reputation of this country that it is above the sleaze which affects most other nations. Instead there is a slippery slope more akin to that of a banana kingdom removing public confidence in the integrity of their government. Once more the possibility that the labour government was as bent as a three pound note is being mooted high and wide because an inquiry was held and not full inquest.

The Coalition has an opportunity to sweep the stable clean. We watch and wait.

FASHION`S ABOUT POLICE AS WELL AS FASHION

 20. Aug. 2010. – 13:02:17 

A couple of definitions of the word “fashion” are a prevailing custom or conventional usage. The word itself is often associated with dress and especially female attire; hemlines up, hemlines down, necklines up or more usually down. 

But the same word can safely be applied to policy whether by government or any agency which purports to be “engaging with the public requirement”. One such is “targets” or “targeting”. In my own courthouse there is an area of wall in the retiring room about 10ft x 5ft with graphs, histograms and pie charts about how long it has taken to do this or do that or to get to this stage or that stage in proceedings, how much of this and how much of that and all compared with “targets”. One factor missing is “results”. This seems to be common. It was due only to somebody`s Freedom of Information enquiry that the numbers of those found guilty after trial at Magistrates` Courts for the last three years were made available and published on this site 16th August. 

Well it seems for some bodies the fashion for targets is being rejected or so say Gloucester Police. In a 53 page document full of endless platitudes and clichés about their intentions and plans for the forthcoming year there is on p3 the following statement, “We will move away from the traditional culture of achieving performance targets and instead concentrate on improving public confidence.” What this means is that this agency does not want to be left pursuing what was considered the optimum way forward, when the previous government pushed achieving “targets” as the means to cure all society`s ills, when the fashion has changed. We have all manner of senior people who as soon as they are safely squirreling away their largely tax payers` provided generous monthly pension payments begin pontificating on the mistakes made by others when they were in positions to have been able to make positive criticism but about which they kept silent.

I suppose it goes back to the old adage, “Do not bite the hand that feeds you”. And that`s why Gloucester Police are now changing track. I wish good luck to Tony Melville the new chief constable who will no doubt carve out his own path in compliance with time honoured trends.

MAGISTRATES` ASSOCIATION IS NOT FIT FOR PURPOSE

 19. Aug. 2010. – 12:39:10 
When there is a confluence of power and unreasonable, poorly thought out proposals from one side of a negotiating party and disharmony, obsequiousness and top down unrepresentative arrogance from the other negotiating party the result often is crass stupidity by the weaker of the two parties. Thus is the state of the Magistrates` Association. It is governed by a self serving body of people who spend without financial reward many hours on attending all kinds of meetings as much for their own aggrandisement as for the benefit of those they purport to represent. In times past many trade unions operated in a similar manner by virtue of the disinterest of the average member allowing officials to masquerade as being representatives. 

On 20th January I reported that the Chief Constable of Greater Manchester Police had suggested that courts should be set up in the local Arndale Centre. The idea was ill conceived but the Chief had a perfect right to suggest this option. However, and this is where we were warned of the impending descent into pantomime, John Thornhill, chairman of the Magistrates Association, was quoted as saying: "We need to be taking justice to communities and it seems to me having a court in the Arndale Centre would be one way of doing it. In principle, if we can deal with things speedily and pragmatically we are happy to do that." It appears that either the Council of the Magistrates` Association was unaware of this or ignored it. In any event Mr John Howson deputy chairman repeating the suggestion has recently made a complete fool of himself, the Association he represents and magistrates in general. Apart from a change in geography this lunatic suggestion reappeared recently in many media outlets of which the London Evening Standard was just one and The Solicitors` Journal another. He endorsed the suggestion for a vacant shop premise in the Westfield shopping centre in West London to be used as a court. There are many reasons why this should be dismissed the most important of which are that at a time when courts in West London are likely to be closed the cost of ensuring a shop has the basic requirements for a court....security, offices, cells, communications etc etc etc etc is disproportionate to any benefits. 

Mr Howson is now covering his tracks. He told Solicitors Journal that "it`s not likely to go anywhere....probably. But it is the sort of thing that the papers like at this time of year, it makes them appear interested in the issue. And let`s face it, we got some pretty good PR out of it." What rubbish comes with these words. Obviously Mr Howson belongs to the school of thought which believes all publicity is good publicity. 

This brings into focus what happens when a top heavy organisation has reached its sell by date. The coterie at the top is exposed as a hard working self opinionated group of aged JPs working towards their metallic rewards associated with such positions. They do not represent rank and file. Until the branch representative system is subject to total overhaul this will continue. Perhaps this event will be a trigger. 

ADDENDUM 20th Aug 2010

It seems the courts in shops proposition put forward with no consultation by the Vice Chairman of the Magistrates` Association has provoked a civil war within the magistracy a body formally known for its reticence in becoming embroiled in public debate, a reticence well founded it seems judging by today`s developments. 

The Bench Chairman at Selby Magistrates` Court, Ron Humphrys, has slated the nonsensical proposal. But on the other side of the fence Chairman Brian Hilton of Waltham Forest Bench has given his support. Whether these two gentlemen have taken opinion from their colleagues in advance of public statements is unknown but my guess is they have not. This absurd division……heaven knows what is going on at other Benches………is manna for the government in its efforts to close 103 courts some of which should have been closed years ago.

The Magistrates` Association does not speak for all J.P.s. About 20% don`t consider it`s worth £33 per annum membership. If this goes on that percentage of non members will certainly increase when members are asked to renew. 

SUPPLEMENTAL ADDENDUM 21st Aug 2010

It seems this monumental farce will continue to run whilst those involved attempt, probably in vain, to clear up the mess they have deposited under the feet of magistrates. John Thornhill who began this nonsense by his acquiescence in the idea as written above has issued this statement:- 

You may be aware that there have been some media reports during this past week which have been detrimental to the Association. I am investigating these reports and discussing matters with the other Trustees over the weekend. I intend to come back to you early next week with a detailed response. 

NO MORE LEGAL AID FOR ASYLUM SEEKERS

 17. Aug. 2010. – 12:58:24 

Should legal representation in courts [criminal and civil] be considered as a citizen`s right in a similar manner to the delivery of healthcare? The answer has to be a definite “No” but the reality has been until a few years ago that many defendants, some with ample means, were able to employ quality legal representation at the tax payers` expense. It was called Legal Aid. Many law firms made a good living by providing their expertise on an open ended piece work based system. Gradually this, what some might term gravy train, has been reduced to a slow shunt for the simple reason that costs had increased almost beyond control. 

In the civil courts the “pay if we win” formula has led to the establishment of call centres, widely advertised on TV, whereby solicitors paying for inclusion have customers directed to them. Many householders now have an option on their household insurance polices to be protected against legal costs within certain conditions.

Every magistrate is aware of the effect of reduced legal aid availability; unrepresented trial defendants are becoming an increasing feature of summary criminal justice. In such situations both legal adviser and bench chairman have a duty to ensure that the legal playing field remains as level as is compatible with processing a case satisfactorily.

But the news today that tens of thousands of asylum seekers and immigrants will no longer receive legal aid to fight deportation in order to save £billions is of a different order. The scandals of the appeal system and the abuses used by illegals in their attempts to remain here are the problem. If the systems currently in use had been subjected to scrutiny including obligations imposed by legislation originating outwith these islands there would have been little need for the sophistry of the Justice Ministry in trying to justify this latest attempt to cut costs.

When the power of the state is used against those who are the most vulnerable it is a cause for concern. When that power is wielded to disguise the overwhelming failure of that state to take control of its own borders it is nothing short of a stain on all of us especially those whose memories include being taught what was “Great” about Great Britain. We`re barely a “united” kingdom and certainly Britain is no longer “great” by any interpretation of that description and this latest announcement is in line with our moral decline as a nation.

UNAUTHORISED FILMING IN COURT

 15. Aug. 2010. – 12:31:34 

There is a grouping of individuals who call themselves Freemen of England whose prime entertainment is their anarchic behaviour when confronted by the legislation that most of the time allows most of us to live peaceful lives within a clearly defined set of rules. Their refusal to recognise the courts system has been well documented. Colleagues on my own bench have been faced with their attempted disruption. I was in court when an individual failed to appear on a charge of contempt related to the above mentioned disruption. I presume his subsequent probable arrest would have jolted his sense of separateness. 

One such event was filmed and is available on YouTube. 

I have always been under the impression that recording of proceedings in court was illegal and any person caught so doing is liable to be dealt with under the Contempt of Court Act 1981 maximum sentence one month custody or s41 Criminal Justice Act 1925 carrying a maximum of £1,000 fine. What I was unaware of until reading a newspaper report recently was that in the Crown Court a judge hearing an appeal from a magistrates` court had the authority to allow such recording. When permission was requested in writing from the appellant “ The judge sent a message back, saying he could apply for permission to record the proceedings – but such an application had to be made in person.”

With the over the counter availability of button sized TV cameras and transmitters it is only a matter of time before the surreptitious recording and broadcasting of a major case and/or jury room discussion is a reality. There is an argument that court proceedings should be available to all who wish to observe. Some would say that this development not dissimilar to broadcasting Parliament is overdue. Has this matter been given any consideration by Her Majesty`s Court Service?

MAGISTRATES AND THE OFFICE FOR JUDICIAL COMPLAINTS

 

14. Aug. 2010. – 16:33:08

Those appointed as Justice of the Peace are very clearly made aware that their public position makes them liable to very severe strictures on the conduct of their private life insofar as it might tarnish the image of the magistracy. Thus a fortnight ago a member of the Waltham Forest Bench who was also a local councillor was removed. The Office for Judicial Complaints issued the following statement;

“Mr Graham Sinclair, a magistrate appointed to the Waltham Forest Bench, failed to notify the Department for Work and Pensions of a material change in circumstances that would have affected his entitlement to benefit. A judicial investigation found his actions fell below the standards expected of a magistrate. As a result, the Lord Chief Justice and the Lord Chancellor have
agreed that Mr Sinclair should be removed from the magistracy.”

However the only press reports concerning this gentleman which could conceivably be pertinent inform that in January 2009 he [and his wife] were unanimously found not guilty of fraud. Without further knowledge more comment is impossible but the message is very clear that a J.P. must not only be whiter than white in his conduct but be seen to be such.

On June 24th Ms June Thomson was removed from her post because she had failed to declare fixed penalty speeding endorsements and penalties. Since the beginning of the year seven magistrates have been removed from the magistracy for failing to show commitment and/or failing to maintain contact with their bench. That usually indicates that the individual has not been able to maintain the minimum number of sittings required.

The OJC removed twenty five J.P.s in the year ended 31/03/2010. So far this year beginning 01/04/2010 twelve J.P.s have been removed. These numbers indicate that the removal rate has increased considerably. With increasing financial pressures on almost everyone it seems likely that many colleagues will seek to reduce their availability to sit in order to maximise their income. It is also unfortunately the case that more, especially those on low incomes, might be tempted to maximise their income but in doing so attempt to obtain benefits to which they are not entitled. With fervent declarations by magistrates and their spokesmen that they are representative of the population at large what could be more representative of that population than when up against financial collapse some turn out to be dishonest.

THE VAGARIES OF STATISTICS

 12. Aug. 2010. – 12:12:00 

It is well known that artists and photographers can create dramatic effects by the judicious use of contrast. Indeed using contrast in a literary context can heighten the writer`s intended effect of his words on a reader who might have been lulled into temporary stasis by tiredness or simple boredom.

But when news items throw into stark relief misinterpretation or an incredible demonstration of a retreat from reality on important topics one just wonders.

Many studies have demonstrated that between 5% and 20% of drivers are uninsured at any one time. That there is no confirmed figure is an indication of the uncertainty on the prevalence of this offence. Considering that every taxed vehicle must be insured and the results can be obtained on hand held computers by police it is surely only a short time until agreed proven figures for uninsured drivers will be published. Nevertheless it is surprising that during a recent police check on the A51 out of more than 3000 vehicles stopped in a four hour period only four were seized at the roadside for having no insurance. The conclusions are fairly limited.

A} Not every non insured driver had his vehicle seized
B} Some cases required further investigation
C} National statistics are wholly inaccurate
D} Drivers on that day at that time were not typical of various statistical databases
E} Police computers were faulty

I suppose some senior plod in Cheshire Police decided the exercise was an efficient use of limited resources.

GOODBYE TO LOCAL JUSTICE

 11. Aug. 2010. – 13:02:45 

Almost every local newspaper every week for the last few weeks has been carrying a story about the possible closure of a local Magistrates` Court. These intended closures have been variously described as a slap in the face for local justice, an interference in the rights of local people etc etc. Before parliament rose the questions from M.P.s to the Minister of Justice on the closures were coming thick and fast. 

Sitting on a large bench in a metropolitan area “local” is less significant perhaps to my colleagues and me than it is to those in more rural areas. The subject is exercising contributors to the Magistrates` Association Forum. I would opine that the mantra “local justice for local people” will be as hackneyed in a few years as “bob a job week” is for the Scouting Movement. In most aspects of our lives there has been a determined push by government to centralise all that is recorded about us. The last government more than any in peacetime accelerated this trend. The concept of LJAs…..Local Justice Areas is an outmoded model being eroded in the name of “efficiency” or “excellence” or “standards” or the familiar term of derision known as “post code lottery”. J.P.s now are not only being permitted to sit in any court in their county or cluster but being positively encouraged to do so. This in itself is not a bad idea considering there are still some courts where a “day chairman” selects the colleagues for each sitting; an abhorrent practice which reeks of twin sets and pearls and spare hats in the ladies` locker for those who forgot theirs. Another welcome change from “local justice” is appraisal by colleagues from other courts so the “you scratch my back and I`ll scratch yours” policy ceases to allow incompetent colleagues, especially chairmen past their sell by date, to continue to cause embarrassment to their wingers and court users in general.

Fewer courts will result in longer travelling distances and times plus increased expense for those using the courts especially defendants and witnesses who rely on public transport. This is not an insuperable problem but it is a problem to be considered nevertheless. 

However the whole subject of cost saving by the Ministry of Justice is being applied with little logic or forethought; statistics with no meaning are being bandied about by those with no understanding not excluding those at the very heart of the policy. The Treasury termites are eating away at the foundations of our justice system; it is only a matter of time before this becomes apparent as parts of the superstructure start to crack in public view. 

PHOTOGRAPHY IS NOT A TERRORIST THREAT

 

11. Aug. 2010. – 12:54:37

There was a rare admission recently from the Chief of the Met police that occasionally his officers get things wrong. Unfortunately it wasn`t that he realised that occasionally his constables murder people “in the line of duty” but even so it was on a subject about which I`ve previously blogged; namely interference by police with the right of the ordinary citizen to photograph more or less what s/he wants under the pretext that the Anti Terrorism Act gives police the authority to prevent such photography and/or to order the deletion of any images with the threat of arrest for refusal to obey or give name and address. This is one small step for police but a huge step for policy.

ADDENDUM 13th August 2010

It was not front page comment for the tabloids but last month three activists were cleared at Inner London Crown Court of obstructing police who were filming their activities illegally. One might surmise on the phrase about the boot being on the other foot....

JUDGE NOT LEST YE BE JUDGED

 11 Aug. 2010. – 11:37:02 

We are all familiar with the toddler hiding behind a sofa but whose feet are sticking out in public view and who wonders how the adults knew she was there; she has no conception at that age of other peoples` viewpoints and she concludes if she can`t see somebody then somebody can`t see her. I think there is a similarity in perception when one has been away on holiday……logically the world continues to spin and events happen but because we have been far away in mind and/or in body we are still with the thought processes of that toddler and can be surprised that things happen without our being on the spot. 

And so it has been for the last week. The Ministry of Justice is consulting on plans to raise the upper age limit for jury service, currently 70, or abolish it altogether. I have blogged previously on the jury system and observed what are in my opinion inadequacies in allowing virtually anybody but prisoners, lords and lunatics to serve. A classic example was reported two weeks ago that at Birmingham Crown Court a juror was doing puzzles instead of concentrating on the fraud case before her. At Worcester Crown Court she was fined £1,200. But returning to the possibility of 70+ jurors surprise surprise; the judges don`t relish the idea. In fact they are positively opposed. Since they generally retire at 70 they are hopping up and down that ordinary people might still be compos mentis when their honours are doing their gardens. In all their eloquent response they fail to consider that they are and were getting paid to judge but jurors over seventy will generally be retired and performing their task as a civic duty. I think the judiciary should initiate a debate upon the universal eligibility of jurors; after all they are on that topic, if no other, better informed than most.

SHE COULDN`T CARE LESS

 04. Aug. 2010. – 23:06:41 

Although he appears to be now backtracking just a trifle from his remarks a month ago on the futility of short sentences Kenneth Clarke`s theme was seized upon by all who consider that community sentences are an answer to many of society`s ills. 

First time offenders with absolutely no record of involvement in the criminal justice system; not even a reprimand or caution, rarely are sentenced to imprisonment but it does happen now and again and one such occasion was in early April. The facts were that Ms X a lady in her fifties with very poor English language [an interpreter was required] had arrived here from one of the East European states newly integrated into the European Union. She was charged with assault by beating. She had found work as a care assistant in an old age home. Earlier this year whilst bending down to lift with a colleague a partially paralysed eighty nine years old dementia sufferer from her wheelchair to the lavatory saliva from the old lady`s gaping mouth dropped on her face. She accused her of spitting at her and immediately threw her back on to her chair, wiped her own face and then gave her first a backhanded slap across her face and an open handed slap on the return to the other side of her face, the large ring on her finger [which apparently was against the rules] cutting her lip. This not being enough to assuage her anger she punched her twice on the chest before her colleague forced her to stop. Subsequently she tried to persuade that colleague to lie about the incident and threatened her if she talked to police. She was found guilty after trial.

My two colleagues, one more senior than I and the other a newbie, initially considered that although the offence had crossed the custody threshold personal mitigation could be argued to suspend imprisonment, a disposal which I believe a previous Lord Chief Justice had regretted having been given to Magistrates` Courts by the 2003 Criminal Justice Act as it had been utilised more than anticipated with correspondingly unpredicted numbers who had broken the terms of their suspension being imprisoned thus increasing the prison population..but that`s for another time. When my newbie colleague, who was also a newbie father, told us that in his own mind he had unprompted mentally substituted a vulnerable child in place of a vulnerable adult in this scenario his position had changed and he persuaded our third member likewise. 

The sentence was thirteen weeks immediate custody. It was unknown whether or not this individual had a record in her own country although that situation I believe can change with the implementation of section 144 and Schedule 17 of the Coroners and Justice Act 2009. In any case in an environment such as an old age home where many residents have major or minor difficulties communicating, is it not ridiculous that a worker whose English cannot cope with a trial can nevertheless obtain employment? At least Ms X`s days as a carer in the U.K. are over.

This episode in my opinion is typical of much that has changed for the worse in this country. The jobs that apparently do not pay enough for UK citizens to get off their arses to do are gladly taken by hard working and usually honest people from anywhere from Romania to Rwanda. Many years ago when I was a student I spent one summer working in a hospital/care home for permanently disabled ex-servicemen; not only for the experience of caring for those who were almost destroyed for their country but also to make enough to live on for the next term. Most of my friends did similar tasks the more unpleasant the work generally the higher the pay and no gap year gallivants in those days. But then every generation bemoans the current state of affairs." it wasn`t like this in my day."

I feel better now that rant is over. The nice nurse in her short white skirt and uniform says I need to calm down and have a break so I`m off now on a short holiday. Come back here in a week or so if you want more like the above.

FINES ARE NOT ALWAYS FINE

 04. Aug. 2010. – 12:58:24 

Sitting in an area which has a high proportion of residents born outside the U.K. we are used to dealing with all sorts, but foreign visitors to this country rarely appear in the dock because we`re hardly a tourist mecca and our residents tend to return to their countries of origin to visit family, but last week was the exception.

A Russian man was visiting his family here. Unfortunately he brought with him the Russian habit of drinking Vodka to excess and trying to drive on, for him, the wrong side of the road at the same time. Along with others I have done my fair share of criticising police practices but certainly they don`t turn a blind eye to drink driving when a Russian hints at a few Roubles if they go away. He was before us having pleaded guilty to drink driving at over three times the legal limit. In addition to a long driving disqualification a U.K. resident would have been subject to at least a community sentence and probably a requirement to do unpaid work. For a foreign visitor that was not possible. We were left with the single option of a fine in addition to driving disqualification in this country. The next step was that we had to convert in our minds an assumed community sentence into Pounds Sterling. My initial thoughts, based on the average relevant weekly income of £350 we are instructed to apply, were that a fine of around £1,000 + costs etc would be appropriate. My colleagues and I eventually settled on a number in total just under four figures. Our legal adviser however told us that since the defendant had stated from the dock that in Russia his income was equivalent to about one third of the £350RWI we were bound to take that into consideration. Having expressed my opinion that this logic could lead to ridiculously low fines for those from the world`s poorest states who chose to conjure numbers out of thin air to escape their just rewards for law breaking in the U.K. we had to proceed as advised. The only daylight in this nonsense is that in such cases immediate custody is applied on a strict £/day formula until the fine is paid. We fined him £500 + costs etc. He had a friend in the public gallery who seemed to give him the thumbs up when he was told he would be in the cells until 4.00pm and then to prison overnight if the total sum were not paid that day and he would stay there according to the formula if necessary.

When about one in eight prisoners is a foreigner and our borders are still as porous as volcanic rock the Home Office still has much work to do and on reducing budgets that seems an uphill task. But if it were as simple to collect long overdue unpaid fines from U.K. residents by threatening immediate custody without the convolutions that have to be performed currently perhaps the £1.3 billion owed might be quickly reduced. That would mean of course more prison places and more [short] sentences. Ever seen a dog chasing its tale……….????

DOMESTIC VIOLENCE: AN ASSAULT TOO FAR?

 03. Aug. 2010. – 08:52:18 

For the last three or four years there has been a concerted effort by police and CPS to bring to court cases of “domestic violence”. Those which are tried at Magistrates` Courts are charged under Common Assault the domestic context being an aggravating factor. There has been an undoubted political impetus to demonstrate that this form of assault, often but not invariably between partners in an intimate relationship, will no longer be tolerated as it once was by police in general and the law in particular. This in itself is no bad development but in a manner similar eg to a reformed alcoholic or smoker or those who have found religion proselytising zeal by CPS is apparent for all to see who care to look.

The CPS has its guidelines and thresholds to which it must adhere and apply to cases brought to it for prosecution. The recent furore over the death of Mr Tomlinson at the G20 demo last April has brought these factors well and truly into the public domain for those outwith the legal professions. 

I have recently become aware that I have been on benches over the last few months where the rate of acquittal in DV cases seems perhaps higher than it ought to be. The reason is simple enough; the prosecution was not able to convince us beyond reasonable doubt that in each case the defendant had indeed committed the crime[s] for which s/he was charged. And that was because the evidence was flimsy and insubstantial the cause sometimes being the inconsistency of the complainant. There is another possible reason and that is the readiness of police and CPS to accept with little probing the veracity of the allegations. 

An example was reported last week at Wirral Magistrates` Court where an offender overreacted to being thought the guilty party in a domestic violence incident when he was in fact the complainant.

I have blogged previously that assault in a domestic context be considered as a unique offence. I am well aware my observations are not necessarily typical. Nevertheless with CPS areas dumbing down the level of those who oversee and fine tune prosecutions and the reduction in legal aid available for defendants both in quantity and quality I fear that the current standard of summary justice will inevitably diminish notwithstanding the excellent duties most of my colleagues perform. 

VICTIMS ARE VICTIMS ARE VICTIMS

 

02. Aug. 2010. – 11:56:35

In recent years the rights of “victims” so called have achieved a position in legal proceedings whereby statements can be read out in court prior to sentencing and a high powered Commissioner for Victims and Witnesses [The Justice of the Peace 29th July] has been appointed to champion their cause. Two victims have risen to public prominence and influence as a direct result of the unspeakable horrors suffered by their daughter and husband respectively; Sara Payne whose direct efforts have brought about the expansion of the Child Sex Offender Disclosure Scheme and Helen Newlove who was created Baroness Newlove of Warrington and who has been a forceful campaigner against anti-social behaviour since her husband's murder in August 2007.

It is certainly the case that victims or the victims` relatives of crimes such as were committed against these two women`s family members should if they wish be allowed greater involvement within the legal proceedings up to a point but where their involvement on a national scale is using the emotion generated by their individual experiences perhaps there is a time to say we should step back and consider whether in fact this is “institutional vigilantism” by the back door.

Three recent events come to mind which illustrate this trend. The case of Jon Venables and his admitted child pornography offences who was jailed for two years recently has led to further public comment by Denise Fergus the mother of the child Venables callously murdered, on the inadequacy of the current law. The near fatal attack in prison on Ian Huntley, the killer of the two young girls in Soham, has resulted in his suing the Home Office citing the prison service`s lack of care in protecting him from such events. And as a general statement that we are all potential victims the outcry over the recent decision by the Appeal Court on two anonymous terrorist suspects that the control orders under which they have existed for over three years must not only be revoked but quashed with retrospective effect. As a result they are seeking compensation.

In my opinion concern for “victims” is apparently a laudable consideration when the victim is the innocent untarnished child or a father vainly trying to protect his family. But similarly to the individual who espouses freedom of speech; it must apply to freedom of speech for those whose opinions he finds abhorrent. The same is true when discussing the “rights” of victims: they cannot apply only to those for whom we harbour great sympathy. If they cannot apply to all they should apply to none.

ALL OPTIONS CRY WOLF

 @ 31. Jul. 2010. – 12:08:23 

When a defendant is sentenced at a Magistrates` Court to custody or to a community sentence it is generally subsequent to a pre sentence report having been ordered by a bench or District Judge when a defendant has been convicted after trial or pleaded guilty. It is prepared by the probation service and read by the sentencing bench or District Judge. In the cases involving J.P.s [majority] the composition of benches especially in large conurbations is rarely the same twice unless a member[s] of the original trial bench elects to sit on the sentencing bench. For that reason the report request must indicate the seriousness of the offence, the degree of the offender`s culpability, the possible range of sentence and the bench`s opinion of what range of sentencing it thinks appropriate for the sentencing bench to consider.

It is long standing practice that one bench cannot tie the hands of another. It is also expected practice to give a defendant an indication of the type of sentence within wide parameters s/he is likely to expect. Thus recently when ordering a P.S.R. for a man of previous good character who had collided with a cyclist and failed to stop we indicated that the P.S.R. would exclude the possibility of a jail sentence. However after court, as we anticipated our legal adviser asked why we had not indicated an all options report. This annotation allows the sentencing bench to impose custody or send to the Crown Court for sentence. We had knowingly excluded that option for the sentencing bench and had effectively tied its hands. 

Until recently that action would have passed with little comment but in an example of how even the great and the good do not anticipate all the possible consequences of their pronouncements our L/A began to explain the opinion of one of the great and good of our legal superiors about the consequences of such actions. We stopped him in mid sentence...how the English language produces puns at short notice..and told him we were well acquainted with that advice and also its unintended consequences. If every report indicates that all sentences including sending to Crown Court are in the mind of the writers how can an overworked probation officer tailor a report to the two or three avenues s/he considers appropriate. In effect the court is crying wolf at every offender when perhaps only one in fifty is deserving of custody.

This controversy came to a head in June 2009 in the appeal 
B e f o r e :
LORD JUSTICE STANLEY BURNTON
MR JUSTICE WILKIE
Between:
NICHOLAS Claimant
v
CHESTER MAGISTRATES' COURT Defendant

The position that my colleagues and I took was based on experience and full knowledge. As my colleague Bystander in his blog has recently remarked with words to the effect that all benches are equal but some are more equal than others there are some colleagues who perhaps are just not up to the job of a modern J.P. One can only despair that a report of a Crown Court Judge earlier this week having had his hands tied by a magistrates` bench is another small nail in the coffin that some would like prepared for the magistracy in its current format.

WHEN LEGAL ADVISERS BARE THEIR TEETH

 28. Jul. 2010. – 11:19:43 

J.P.s are appointed on the basis of their possessing many of the qualities thought to be necessary to do the job. Whether the job template needs altering is another matter for another time. Although there are lawyers on the bench there are also many other highly qualified people and some not so qualified in academic terms. The legal adviser is there to ensure that decisions made by justices are lawful although that does not preclude a very small minority of decisions going to appeal. I myself have been on a bench whose decision on a property matter some years ago went to appeal at the Queens Bench Division; it failed. Over the fog of time I recollect that our legal adviser when told of our original decision was surprised but when she heard of our structured approach to reach that decision admitted it could not be faulted. And that is as it should be. In my opinion she performed her duty to the letter…..that her conclusion might have differed from ours had she been on the bench instead of in front of it is not relevant. 

These thoughts passed briefly through the space between my ears a couple of months ago when we were considering a case of possession of a bladed article. Unless a person has a specific good reason for having the item in his possession he is guilty. In addition that reason must also apply to the moment of possession. So a carpenter eg who uses a particular knife for his job but is found in possession on a Saturday night out is guilty but if he were in possession one morning driving his van between jobs the defence could apply. 

Our defendant, an illiterate Kurdish man in his sixties, had been found with a small fruit knife at the bottom of a shopping bag when stopped at a department store on suspicion of committing theft. His defence was that since he had severe untreated dental problems the knife was needed to cut fruit the mainstay of his diet. We were told that he made some money doing odd jobs here and there and he confirmed that he ate a lot of fruit at home and when he was out working because it was relatively cheap and nutritious but that he needed the knife as his teeth were so bad biting was almost impossible. At this point he demonstrated to all that his few remaining canine and incisors were very loose. The prosecutor herself was on shaky ground and this wizened old man held fast to his version of events. The total sum of the CPS evidence was the finding of the knife which was of course admitted. 

Some legal advisers take a more pro active approach to their role than others. It is my practice to tell the adviser that either we will ring for him/her when required or to allow a certain time before joining our discussions. I will certainly, unless the situation is very unusual, not invite the adviser to join us at the beginning of our deliberations; any legal advice being given in open court. 

In the above case we decided that there was a valid reason for possession and asked our L/A to join us as we began to write our reasons. He asked us to confirm that we had followed a structured approach to our decision and that we truly were aware of the legal interpretation of possession at that moment. We explained that we considered the “moment” was an ongoing event owing to the defendant`s continuing inability to eat fruit in the normal way and cutting small pieces was reasonable activity with the small kitchen knife. However instead of accepting our decision he continued in an attempt to change our minds. He did not succeed. Our decision making was based on a correct application of the judicial structure in which we all receive very high quality training and reviews. 

The L/A referred to above in the case that went to the Divisional Court accepted our decision when assured it had been correctly derived although she admitted her conclusion might have differed. She is now a Crown Court judge. There is a moral there somewhere. 

THE CPS & COCK UPS;HOW MUCH MORE?

 

23. Jul. 2010. – 15:34:43

Yesterday I sat in the video remands court. This is a fairly successful innovation using video technology to allow prisoners or defendants on remand to make common applications without having to be transported to court. Its undoubted success in saving cash and improving security….no chance of escape en route……..has led others high up the Ministry ladder to make the failed intellectual jump that video courts per se are the way of the future; they are not!

However even without the prisoner or defendant in front of us, yesterday`s sitting demonstrated the appalling state of the Crown Prosecution Service and its partner in crime; the Police Service. A prisoner was due to be committed to Crown Court. The due date was actually last week but CPS had applied successfully for an adjournment. Their problem was that there was a gap in continuity in the evidence trail. The charges were associated with possession of Class A with intent to supply and cash proceeds of crime. The difficulty as the Crown said last week was a gap between the drugs and cash and the defendant. The forensic evidence to tie them to the defendant had not been produced. On that basis defence counsel not surprisingly asked that the case be withdrawn. The prosecutor in fact reluctantly discharged the defendant meaning charges could be laid at some future time. However this character did not walk free; he was being held by immigration authorities pending deportation. This in my experience is not an isolated example of the proverbial cock up. The system is truly drowning in its own inefficiencies aggravated by low morale and reducing resources. In addition the atrocious decision yesterday not to proceed with the prosecution of the police officer seen striking Ian Tomlinson at the G20 demo last April is just the public tip of an iceberg of chaos. It is badly led, mal administered and dying a death of a thousand cuts. In every court in its jurisdiction every J.P. and judge has his/her own story to tell. Only when the next unfortunate case of its crass failures hits the headlines will note be taken......until then.........?

POLICE MISCONDUCT

 22. Jul. 2010. – 11:43:31 

Psychologists, psychiatrists, neurologists, biologists, physiologists singly, in any combination or permutation will confirm that we have at least two types of memory; short term and long term which explains why centenarians can remember their school days but forget to put in their hearing aid although I have to admit that the fellow beak who didn`t remember who was the defendant and who was his lawyer has sat with me on more than one occasion. 

Be that as it may it was whilst reading on BBC online that later today a decision * will be made on whether or not to prosecute a police officer with regard to the death of a newspaper seller at the G20 demo last year that possible unlawful actions by police in the execution of their duty and their outcomes reminded me of what I thought was a long forgotten trial I sat on three years ago; one case amongst many and one I had apparently completely assigned to my long term memory where it had lain dormant like the dinosaurs in Jurassic Park waiting to be resurrected with the correct stimulus. 

Two young Asian men had been stopped by a police patrol car in the wee small hours whilst cycling in a residential road in a high crime area. The outcome was that one of them was charged with assault of one of the officers in the execution of his duty. In their evidence the police officers gave conflicting reasons why they stopped the pair. The officer against whom the assault was alleged stated that the defendant was looking at the houses in a suspicious manner as they were cycling and he [and his companion] were stopped for that reason. The other officer actually denied that and stated that the reason was the high rate of crime in that area. So they were stopped and searched. The companion had in his possession a mobile phone which the officers told him was listed as having been stolen two years previously in a robbery. He was arrested, handcuffed and placed in the police car awaiting a van to take him to the station. The defendant was clean. He was told to leave the scene. He replied he wanted to stay around until his friend was placed in the van because he thought he had been treated with more force than seemed necessary…neither had offered any resistance. He was warned to go away. A second mobile phone in his friend`s pocket began ringing and the friend knowing it was his mother worried why he was not home asked him to take it from his pocket and answer it. As he approached the same officer to ask that he might do that the officer alleged that the defendant confronted him toe to toe and punched him. He was overpowered, handcuffed and taken to the police station with his friend in the newly arrived van. He was charged with assault on a police officer in the execution of his duty. 

At trial a third officer who was driving the car and who made the stop decision did not give evidence or have a statement agreed given in evidence. For the defence both young men gave evidence. Both were of good character and did not appear on the Police National Computer. In order for the charge to be made there had first of all to be a lawful stop and search under PACE. We were not convinced by the conflicting evidence of the officers in this regard. That rendered the arrest of the friend unlawful. We were told by the Crown that they accepted that he had indeed bought the mobile phone in good faith from a recognised dealer and he was released without charge later that day. Again owing to conflicting evidence from the police officers we found that the defendant had acted in self defence from an aggressive police officer who had stopped him the previous week for apparently no valid reason and been told he`d get him next time. This officer in his statement and in examination told us that he was punched in the chest; under cross examination he withdrew that allegation and said there was a failed attempt to punch him which was later denied by the defendant. In addition no evidence was produced that either party had been cautioned before arrest except an assertion by the second officer that the missing police driver had done that.

Not surprisingly this defendant was acquitted. Such cases leave a nasty taste in the mouth. When they occur, knowledge must filter back to a senior officer. I am unaware of what procedures there are if any to consider these results. Perhaps any police officers reading this might enlighten me. Cases of possible police perjury in minor cases or inappropriate conduct allowed to pass without comment could conceivably lead to more serious matters. Public confidence in policing can be achieved only when there is no doubt that at all levels possible misconduct is investigated. 

ADDENDUM 18.00 JULY 22nd
* The CPS have announced that no charges will be brought against the police officer who struck the blow filmed for the whole world to see against an innocent bystander at the G20 demo last April. Even at this distance chronologically and as the crow flies the Rodney King case in Los Angeles reverberates. I have a thought at the back of my mind that if the previous incumbent at the head of the CPS were still in office today`s decision would have been different. Over the next few days many lawyers are going to offer their opinions. I am dismayed that this decision has all the appearance of a conspiracy not to see justice done the important word being appearance. There is an old phrase, justice should not only be done; it should be seen to be done.

Today in the eyes of the public justice will be seen as not having been done. That is the failure of this cop out. 

FROM HAROLD SHIPMAN TO FRANZ KAFKA WITH MUCH IN BETWEEN.

 21. Jul. 2010. – 08:48:20 

Harold Shipman was a mass murdering monster. The system that was meant to oversee him was not fit for purpose. It did not have methods nor a philosophy to deal with such depravity. And as a result after innumerable investigations and edicts from high above Whitehall the practice of many professionals in many professions has been changed beyond recognition.

The resultant “tick box” culture is not a sharp journalist’s catchy phrase; it is alive and very well, kicking and screaming like a newborn baby. The Magistrates` Courts system is besotted with it for those employed by Her Majesty`s Court Service. Thankfully my colleagues and I are independent members of the judiciary and owe no such duties to the faceless number crunchers who believe justice can be analysed by a pie chart. However every so often a response sheet comes along for filling in. One such was an analysis of the post court review in the manner of a tick box series of questions. The actual review per se is an important feature to enable brief but frank discussion between and among bench members and their legal adviser to note any points arising in court which could usefully be dissected. For new colleagues especially this is an important learning event. But a year or so ago I was amongst the first chairmen on my bench in a pilot run at our court to be asked to fill in such a form after a sitting. I questioned the need for this with the chairman of the committee responsible for its introduction. I was told that, “We don`t approve of such formality and time wasting but unless we produce a negative impact result it will be foisted upon us”. This time wasting exercise quietly disappeared. Would that those who spend their expensive tax payers money producing such treats for those who are actually contributing to the efforts to make this country function efficiently disappear inside a big black hole.

There are more jokes about lawyers and the legal profession than most others. My favourite is the one about the client who asks his solicitor for advice on a very tricky subject. He gives his opinion but then says that to be 100% sure he must check the statute. He goes to the overloaded and crowded bookshelf, pulls down the appropriate volume and then reads chapter and verse to himself before assuring his client that his advice was rock solid. After accepting the offered thanks and handshake the lawyer asks him to pick up a pre prepared account from his secretary on the way out. Two minutes later the client returns exclaiming, “You`ve charged me £500 + VAT and all you did was take two minutes to look at a book.” “Agreed”, replied the lawyer, “but I knew in which line in which chapter in which book to look up.” Time spent on a job does not in itself guarantee the job done correctly….it`s the quality of utilisation that`s important. 

But back to Shipman whose legacy is a blessing for all those whose demise into the big black hole I would heartily endorse. 

Contacts within the optical profession have told me that in Scotland this form filling mentality has reached them where the rain rains and the wind whistles. Optometry Scotland the organisation responsible for running the optical department of the NHS there has reminded practitioners that they could claim payment only for a maximum of twenty eye examinations per seven and a half hour working day. This ordinance pays no regard to any variables including practitioner experience or equipment or any patient variables which number to n-1. Inspectors will check on individual practices to enforce compliance

I read yesterday that lawyers in Switzerland oversaw the opening of four safe deposit boxes thought to hold the most precious items in a collection of documents belonging to the great Czech writer Franz Kafka. Six other similar boxes were also opened in Tel Aviv by order of a court there. 

This most wonderful of writers of the last century was a Nostradamus for our times. In less than a century since it was written the characters in “The Trial” are alive and well in the U.K.