3 MAGISTRATES SEEM FAIRER FOR A DEFENDANT THAN A SINGLE D.J.

 

24. Sep. 2010. @ 08:22:23 by TheJusticeofthePeace

There are various arguments for the increasing deployment of District Judges [magistrates` courts] throughout the country. Indeed a few months ago there was indignation amongst J.P.s when advertisements were published seeking applicants for thirty new appointments; since modified to thirty applicants to be available if the need arises. I will not rehearse now these arguments but a case from the retiring room will, I hope, illustrate why a bench of three is a safeguard for every defendant.

A few weeks ago a middle aged Kosovan man was in the dock. He had pleaded guilty many months and appearances previously to driving with excess alcohol but had put forward a “special reason” defence of having had his drink spiked by a fellow countryman. He had admitted to drinking two glasses of wine but claimed that a further non alcoholic cocktail had had alcohol introduced to it without his knowledge. A previous bench had set a date when his case would be tried. He had indicated that he would call two witnesses. As is usually required in such matters an expert would prepare a paper and give evidence on the ramifications of the spiked drink. The other witness, the court notes indicated, would be the person who did the spiking! Represented by the duty solicitor on his last but two appearance he agreed to the directions re the witnesses and a date was set. On his next appearance alone he had told the court he could not afford to pay a lawyer and also to pay for the expert. A final date was set when he appeared before me and my colleagues. He duly turned up with a barrister who explained why he was asking for a further adjournment.

Firstly he was at pains to tell us that he was mindful of costs to the public purse if we refused his application and he had to appeal at Crown Court. He was told that the court appreciated his concern for the Coalition`s problems in reducing the deficit and then allowed him to continue with the irony not lost on him. Apparently the “spiker”, we were told, had just lost his mother and he had left two weeks previously for Kosovo for the funeral. “When had he been made aware of his witness`s inability to attend”? was the question put. After some hurried consultation we were told that the previous day the witness’s wife had phoned the defendant telling him her husband had left England. Confirming that the witness was Moslem an observation was made that such funerals are conducted usually within twenty four hours. It also appeared unusual that the wife had not returned to Kosovo. The excuse for the non appearance of the expert again was that the defendant could still not afford to employ both a lawyer and the expert but he assured us he would have the money in a few weeks.

Our bench was split. It was our final decision that the application be granted; the expert submitting his report within six weeks and a recommendation that apart from acts of God the matter would go ahead on the next occasion. So this drink driver will retain his license for another couple of months until his defence is tried. If he succeeds he carries on; if not he will be disqualified for at least twelve months.

Colleagues reading this and others also might consider whether or not the bench was naïve in making the decision it made. My point is not the decision itself but that it was made by three people. A District Judge might have taken one position or the other but for defendants a jury of three is more of a safeguard against a rogue decision than a single individual acting as both judge and jury.

JUDGEMENT AT CHESTER CROWN COURT

 22. Sep. 2010. @ 08:41:30 by TheJusticeofthePeace

All judges and magistrates must pay heed to the guidelines published by the Sentencing Council. Ancillary considerations eg suspending a jail sentence or activating all or part of a suspended sentence are a matter for the sentencers` judgement……..that`s why we have judges and magistrates. Magistrates` sentencing powers are with few exceptions limited to six months` custody. When a bench considers that an offender might warrant a term greater than this s/he is sent to the Crown Court to be sentenced by a judge.

Such was the recent case of Billy Perks who was sent to Chester Crown Court for sentencing after offending whilst under a suspended sentence order. From the details given it would seem a judge would have been likely to have activated all or part of the S.S.O. His honour thought differently and allowed the offender to remain in the community.

Two conclusions come to mind. The judge erred in being so lenient and should have activated all or part of the S.S.O. There is no reported reason for the judge`s decision. He also tied himself if not his fellow honours by telling Perks he will certainly be imprisoned if he appears again. Such a decision at this distance appears to require an explanation or an appeal by the Crown Prosecution Service.

Before the election Jack Straw, Labour`s Justice Secretary, observed that over 20,000 cases sent for sentencing to the Crown Court by magistrates resulted in sentences within the magistrates` powers of six months` custody and so could have been retained. Perhaps he should have looked at their honours` disposals to seek answers. Is it too much to hope that his successor Kenneth Clarke will undertake that task?

IT`S ALL RELATIVE

 21. Sep. 2010. @ 13:56:44 by TheJusticeofthePeace

Everything in this world is relative. Whether large or small, fast or slow, widespread or rare, black or white, rich or poor, ugly or beautiful, deadly or benign and nowhere are these contrasts more fiercely debated than in the punishments allowed under the criminal law. And when these punishments are in the form of a fine the comparisons are often surprising.

Driving without insurance is a very common offence to come before a bench. Disqualification is available for serial offenders or where the circumstances demand that the public should be protected from that offender being on the road but it is more usual to punish by points on a license and a fine which although theoretically it could be as much as £5,000 rarely exceeds a tenth of that because it is based on income declared. For an offender pleading guilty [and there`s rarely an alternative if the police have done their homework] the fine is equal to about a week`s wages after tax and in the case of somebody on benefits it is unusual for the fine to exceed £200. 

However as I wrote earlier; everything is relative.

Consider a dog owner who allows his dog to crap in a Manchester park. For those who have had the pleasure of seeing their children playing in a park, jumping, skipping, kicking a ball these activities are often balanced against the thought of what muck is hidden in the green grass. Toxoplasmosis, a very nasty disease, is often transmitted to children from dog faeces in parkland. Dog Control Orders were brought in under statutory instrument in 2006. They allow councils to impose fixed penalties or fines on dog owners whose dogs amongst other things are allowed to crap in the park. 

Two such cases were reported recently having been dealt with at Manchester Magistrates` Court. Fine and costs totalling almost £1,000 in one case and a little less in another were handed out. There is no knowledge of the offenders` incomes as they were tried in absence but it can be assumed about £300 - £350 per week was used in calculating the fines which cannot exceed £1,000. 

Dog fouling is nasty! Rogue dog owners deserve every sanction the law provides but so do those who drive knowingly with no insurance. To paraphrase Albert Einstein; “It`s all relative.”

ROBBERS & J.P.s GO TO COSTCO

 19. Sep. 2010. @ 11:24:19 by TheJusticeofthePeace

Last week a friend asked me whether membership of Costco is worth it. I`ve been a member for quite some time so of course I said it was. As I`m partial of an evening to a spoonful of the amber medicine to help the sugar go down I usually make my visits when my stock is down to my last two bottles. And today`s the day. But without having to have a blood alcohol level that would make the doctor faint when he tried taking some am I the only person associated with criminal law who has thought how to commit the perfect murder? So far I have a few victims in mind and I`m working on the rest of the plot especially of course how to get away with it. So just a few brief stories about how some really stupid people have no idea how to break the law and get away with it. 

Two brothers with three others were involved in a shooting whilst robbing a Costco in South London. So what do ruthless armed robbers do after the event? Of course they take pictures of themselves holding some of the cash; just like Bonny and Clyde. Nobody`s going to make a film of these brainless barbarians or eulogise them in song a la Georgie Fame. No! It`s just years behind bars. 

If the key to a criminal`s planning is to forge signatures for personal gain one would think the last signatures he would attempt to copy would be those of not just one judge but two of their honours and not content with those, also a police sergeant’s to boot. Numvi Divine, aged 37, was jailed for five-and-a-half years at Sheffield Crown Court.

Well, I`m off now to Costco. 

A TOTTER IS A TOTTER IS A TOTTER

 18. Sep. 2010. @ 14:04:21 by TheJusticeofthePeace

I have frequently commented that deterrence is a major plank in any criminal justice system. Not only is the deterrent effective at the top end of criminality where thresholds breached can mean the difference between some or many years in prison; it applies at all levels of unlawful behaviour. Of course the greatest deterrent was the death penalty. Apart from the humanitarian arguments, as a very young person I remember the proponents of abolition arguing that a life sentence would be every bit as effective a deterrent against murder as death by hanging. Although there is absolutely no likelihood of capital punishment being re-instated unless we ever elect a fascist government statistical evidence suggests that it was indeed a more effective deterrent than any supposed life sentence. 

However if the argument of the effectiveness of deterrence is brought within the compass of everyday life nowhere is it more in the minds of ordinary citizens than when penalty points are accumulated on a driving license. 

Twelve points within three years and bang goes that permission to drive for the next six months. If only legal life were so simple. It isn`t, and lawyers make a tidy living from trying to persuade magistrates and judges that the get out of jail free card should be applied to their client. On May 15th and September 6th I discussed at length “exceptional hardship” by which a 12 pointer can escape disqualification. Nowhere in the legislation and case law can I find that that get out scenario can be applied to an individual because he is a very religious and/or good man as a certain Ms C. Blair pronounced on a defendant to whom she gave a sentence outwith normal guidelines and spared him from prison. She was later cleared of misconduct by the Appeal Court. 

Recently Bournemouth Magistrates` Court decided that a defendant who had accumulated twelve points would not be disqualified. Exceptional hardship did not apply. The defendant, chest surgeon Khalid Amer, escaped a ban because the bench decided that patients could die if he were disqualified. In my opinion this was a wrong decision in law and an atrocious decision morally. In simply practical terms the defendant presumably was able to afford to hire taxis or drivers when required and even put the costs down against his income for tax purposes. The bench has set a level where their version of the law takes a social stand on the worth of the individual to society. Equality before the law is a necessary adjunct to a just society. Who else will these magistrates consider in the future to be so necessary to the community that they will apply the same misguided judgement?……a priest caught speeding to administer the last rites to a dying parishioner?.........or any number of totters who are unable to claim exceptional hardship but are worthy members of the community whose loss of their license will be detrimental to society? 

Justices of the Peace are selected from “the community”. Therefore we are in general prone to occasionally deviate from accepted procedures. I can only conclude that in this instance with the approval of the legal adviser emotion overwhelmed reason and logic. Mr Amer`s case was rightly considered as not being within the definition of exceptional hardship. Mr Amer was exceptionally lucky!