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. 

FINE DEFAULTERS & DEBTORS` PRISON

 19. Jul. 2010. – 14:33:33 

There are some days with some people discussing some subjects when for days after one has an unusual mental itch that doesn`t seem to respond to any scratching. The only cure I have found for such a situation is to source as much material as one can on the subject that`s causing that much irritation.

And so it`s been for the last few weeks until I finally got round to trying to alleviate that intellectual itch. The catalyst was the announcement earlier this month that there was £1.3 billion give or take the odd few million outstanding in unpaid fines, costs, compensation etc. I was discussing with a colleague and old friend how we treat fare dodgers on our local suburban railway lines and she who sits in London was comparing fines imposed on London bus users who are caught fare dodging. Some of what she said was truly staggering. Two or three times a week a half day court was taken up with lists numbering up to eighty alleged offenders. The vast majority didn`t bother to send in a means form or indeed anything at all in response to the summons. Very few ever actually turned up; perhaps three or four at most. A first offence attracted fines and costs of £200+ for an offender who hadn`t enclosed any response. But what actually caused the metaphorical stagger was the admittedly small number of offenders who appeared never to pay a bus fare and treated the matter of subsequent fines as some slight annoyance. She recounted that at her last sitting in such a court out of about seventy offenders listed four had a history of previous similar offences in the last four years of a number in excess of twenty seven failures to pay. Now that was truly staggering. What was atrocious however was that most of the fines were unpaid. Some were indicated as having been passed to bailiffs but no further details were available to her or her colleagues. I asked her how much such offenders were fined in her court to which she replied a figure of £500+. She showed her frustration by ordering another double espresso. 

The body charged with collecting fines from London courts is the London Enforcement Directorate. Funny how these organisations have gone from “agencies” to “directorate” in a decade……….one could be forgiven for thinking KGB but at least the KGB got results. A recent page from its newsletter is copied at the end of this post.

The glaring omission in the information published is of course the totals of unpaid fines and their history. After all in a newsletter one doesn’t tell the troops of the failures; only the successes. 

There are two obvious results of this unbelievable inefficiency on the part of government agencies and their overlords. £1.3 Billion should be in the Chancellor`s treasure chest but of equal import is that these hundreds or thousands of non payers plus all the rest spread the word to others that there`s no need to pay a fine for fare dodging or other similar offences; it will disappear. And so help me….they`re correct. It`s difficult enough to put such defaulters in prison at the best of times but in the current climate this is the worst of times. Many US states jail fine defaulters at the rate of a $/day or similar without too much ceremony. It might sound harsh to those who consider that non violent offenders should be “sentenced in the community”. There used to be establishments known as debtors` prisons. For those described here they should be resuscitated!