@ 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
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.
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