"P" PLATES CAN P*** OFF

 

by TheJusticeofthePeace @ 13. Nov. 2010. – 12:58:11

One would have thought that a representative body faced with the most radical shake up of its members` practices in a generation…..even in two generations……..would find it logical, expedient and productive to concentrate all its efforts and limited resources to hammer out its message to the public and opinion formers. One would have thought so but when the organisation in question is the Magistrates` Association it appears that logic, expediency and productivity go out of the window.

There are pressing matters and pressing arguments to concentrate minds with regard to the Coalition`s intentions to reduce prisoner numbers, close prisons and divert many thousands of addicted and mentally ill offenders to non existing [at present] community institutions staffed by non existing [at present] personnel paid for with non existing [at present] resources. Thus there are many directions in which the M.A. could be firing its short supply of arrows and still find a useful target. But that would too obvious. Instead, according to a report today in The Telegraph, the M.A. has proposed that newly qualified drivers should be legally required to have on their cars front and back a green P plate to warn other road users of their inexperience. This story for emphasis is subbed as policy of the 28,000 member M.A. I have searched high and low in the impossibly difficult to navigate website of the organisation and found no mention of this policy. One would have thought that a document sent as official policy to Philip Hammond, the Transport Secretary would have at least been noted in the minutes of the latest meeting of the association`s  Road Traffic Committee on 7th October. One would have thought wrongly.

One would have again thought that such a radical proposal from those who represent us, the magistrates who sit in judgement of such matters, would have been discussed with others who might have some input learned from experience. Perhaps the M.A. has had talks with driving school representatives, or those involved in road safety matters, or motoring organisations, or the police and Crown Prosecution Service who would have to detect and prosecute those who flouted this proposed new legislation. From the report we are told the A.A. gives it short shrift.

The A.G.M. of the Magistrates Association takes place later this month. It will be attended by a couple of hundred at most. And that is the way the incumbents prefer to keep its meetings……close confined. The minutes of the last A.G.M. will not be available until the impending get together. That is another way of ensuring minimum criticism. There is no good reason on this Earth for these minutes not being available in advance on the labyrinthine website recently re vamped at a cost of perhaps £50,000. The 2008 minutes have no information of members in attendance. Obviously each would have had to sign in. Why should the names of the attendees not be added on a separate page[s]? At least the numbers attending and voting should be published without web site obstacles which make navigation nothing short of a joke impeding efforts to seek answers. Why is there no facility for distance voting?

When many of an organisation`s functions are carried out in a less than transparent manner errors of judgement will be made and re-made and made again. Irrespective of the soundness or otherwise of the proposal described above to have made it with apparently little or no consultation and been singularly rebuffed by the Minister of the department involved is sheer crassness. I have said it before and I say it again……..in its current form the Magistrates` Association is not fit for purpose!

UNPAID FINES

 

by TheJusticeofthePeace @ 12. Nov. 2010. – 08:12:09

I`ve posted in the past on unpaid fines which currently total around £500 million and rising. Routine pronouncements from the bench when issuing fines, costs etc include stating that a collection order will be made if the fine is not paid according to the agreed schedule. That means that without further formality bailiffs can be given instructions of seizure. All very well in theory but different in practice.

Reality television has made the daily work of bailiffs a half hour series of entertainment. Bailiffs of course work for any contractor who has unpaid sums owing from a customer for services rendered…….from the sale of a car to the supply of a parking space. Unpaid court fines` procedure allows for an offender to be arrested and brought to court to explain his non compliance with the court order. Either of two findings can be made by the court which allow the offender to be imprisoned for his reluctance to part with his/her cash; wilful refusal to pay or culpable negligence to pay. Custody can be up to seven days for an amount unpaid not exceeding £200 to one year for a sum in excess of £10,000. The major problem for the courts is the hoops through which they have to jump to impose a jail sentence.

It was interesting therefore to read a report in This is Cornwall about the police in Truro in conjunction with the local magistrates` court attempting to prise some outstanding fines from the reluctant hands of offenders.

For some people only direct action of this nature with the threat of imprisonment will force payment. With the stated policy of the Coalition to reduce the numbers of prisoners come what may there is absolutely no prospect whatsoever of the fines deficit being reduced……..another story of too much carrot and not enough stick.

VACANT and VACATED

 

by TheJusticeofthePeace @ 11. Nov. 2010. – 12:56:44

A full day`s sitting last month did not seem to hold any surprises when I consulted the court lists at 9.30am. There were two trials to be prosecuted by the CPS scheduled for the morning and one for the afternoon. Apart from extremely simple matters such as no insurance or some non CPS matters very few trials are listed for less than half a day. Having two trials listed that morning each an allegation of assault but one in a domestic context was normal. The official policy it seems is that with a high rate of cracked or non effective trials the only way to improve efficiency is to double list. In blunt terms if everyone appears for both matters one of them is likely to be adjourned or to go part heard…….rough justice for a defendant, his/her lawyer and witnesses if any.

On that day priority was given to the DV case and so from 10.00am after the usual preliminaries and request from the prosecutor to have a very short adjournment with the Officer in the Case we heard a sorry tale of why he could not proceed. At that moment the defendant, a grim faced well built male of twenty seven, seemed unable to suppress the hint of smile. We were told of a history of statements made by the complainant at the scene, repeated at the police station a day later, withdrawn a month after that, the withdrawal itself withdrawn four weeks prior to trial and now a refusal to appear even although she had briefly attended court at 9.30am. The prosecutor announced formally that he was offering no evidence and accordingly we dismissed the case. During a brief recess we were told that a previous bench had found the defendant not guilty of a breach of his bail condition of non contact with the complainant. The strong sweet black Italian coffee didn`t taste as good as usual.

The second case of assault was of the usual kind insofar as there is a “usual” kind. An argument in a pub leads to an altercation outside and the loser gets a bloody nose whilst the defendant is in the dock unrepresented after being refused legal aid on income grounds which means he earns more than about £21K. He was forty four, had dressed for the occasion, well cut suit and white shirt and tie. He seemed to be comfortable in such clothing and judging by his address lived in a smart part of town. I often wonder why those who might have money for cars, holidays and restaurants don`t spend some of it on a lawyer when they are before the court especially when they are of good character. This chap, when the crunch came and he was asked if his plea was still not guilty, decided that at this the third listing he would change his plea.

So by 11.15am our official morning list was over. We did manage to employ ourselves undertaking the Queen`s business until about 12.30pm by taking work from the remand court which is so over burdened by design that without other courts` availability due process would be impossible.

And so at 2.00pm with two new colleagues we said our “Good afternoons” to the few assembled for my third attempt at a trial that day. Arthur Nixon, Nick Arthur or Arthur Nicholas aged 37 was on our list as having assaulted a male and a female, his wife`s brother and the brother`s girl friend six months previously. CPS prosecutor rose to tell us that nobody has appeared. Both the defendant and the wife`s brother were apparently serving time for Her Majesty and the female was not contactable. When enquiry was made as to why all this was not taken into account by the CPS during normal review prior to trial and information conveyed to the court we were not surprised to be told that reduced staff availability had led to a lowering of quality control. He shrugged, our L/A sighed and my two colleagues who had been rostered only for the afternoon moaned audibly when we were told that there was another bench taking remand court`s leftovers. We were released about 2.20pm.

Such is the reality of why a court does not always reach 80% utilisation demanded by the Minister of Justice.

BENEFIT FRAUD: CROWN COURT OR MAGISTRATES` COURT?

 

by TheJusticeofthePeace @ 10. Nov. 2010. – 16:36:23

Benefit Fraud is an either way offence with a maximum sentence at Magistrates` Courts of six months custody and/or £5,000 fine. Tried on indictment under various Acts at the Crown Court the maximum sentence is ten years. Until about a couple of years ago magistrates` benches were usually advised to decline jurisdiction if the sum involved was over £20,000. Indeed as recently as October last year at Hendon Magistrates` Court in London a case was sent to the Crown Court when the sum involved was £35,000. At my own court within that self same period of one year we have been advised by prosecutors on behalf of the Secretary of State that Magistrates can accept cases where up to £60,000 is the alleged sum involved. Our L/As appear to have received similar advice.

It was therefore interesting to read the case of a mother who was sentenced after trial to three months custody [suspended] at Crown Court when the amount obtained was less than £20,000. Not having been there I would hazard a guess that it would seem likely that this defendant elected trial by jury. Defendants take such legal advice for one reason; the belief or hope that they would be more likely to be found not guilty. I do not think they fully consider that if found guilty they might receive a greater sentence than at the lower court. If that were the case and being unaware of all the facts I would stick my neck out and suggest that her sentence was indeed probably more severe than that which would have been handed down at least in my court.

Because two cases are perhaps similar but not the same I suppose it is difficult to analyse the difference in sentences for similar cases in either way offences such as above. I have a vague recollection of reading somewhere that it is thought that in comparisons such as I have described judges do tend to impose heavier sentences than are imposed in Magistrates` Courts. If that were so would defendants follow the maths or would they would they hope for acquittal? And of course the temptation of legal aid at Crown Court might be attractive to some.

SQUATTERS` RIGHTS/ SQUATTERS` WRONGS

 

by TheJusticeofthePeace @ 08. Nov. 2010. – 16:33:57

For anybody who parks a car in a dodgy neighbourhood there is always the underlying fear it could be vandalised or worse……stolen. Vehicle theft is indeed a serious criminal offence. If it were not so considered eg if one had to identify the thief and take out a summons through the civil courts system cars would be disappearing non stop. Fear of discovery and deterrence certainly have a part to play in keeping the lid on any acquisitive criminality.

How different it is when one is considering theft of one`s fixed property; ie house or commercial premises. Landlords know of the possible problems when a property is vacant between lets or for some other reason. And property owner Connan Gupta now knows more than most………..to his cost.

Vacating his house whilst it was being re-furbished he returned to find it occupied by squatters. Squatters might be the accepted term for such people but I prefer the description property thieves indulging in theft of property and, according to the Mail online report, excusing their actions by spouting Marxist rhetoric of the basest kind.

That this is not a criminal offence is a downright scandal. With the prospect of Housing Benefit changes around the corner increasing homelessness the Coalition must rectify this sorry state of affairs ASAP. 

BLOGGERS UNITED IN FREE SPEECH

 

by TheJusticeofthePeace @ 08. Nov. 2010. – 14:14:37

There is democracy within an organisation and there is the appearance of democracy. After having listened to an interview this morning by John Humphries on “Today” with a very senior Chinese government official who when he asserted that there is no single pattern of democracy and that western ideas of such are not the only forms of the Athenian innovation I could not but think of the Magistrates` Association and its version of the “D” word. 

Recent statements have indicated that the M.A. is considering changes in its structure to render it more representative of those it purports to represent. Perhaps it will consider a change along the lines of ridding us of the outmoded branch system and make benches the unit of organisation; a change I have long advocated and which my own branch has soundly ignored without debate. Another innovation would be using cyberspace in its many facets to gather in opinion from a wider constituency. However despite pleadings from Fitzroy Square it cannot and should not try to control individual magistrates from speaking out on their own behalf whether anonymously or not when they make it clear that their opinions are those of themselves as individuals and not representative of anyone or any organisation. The debate in the last few weeks to keep open courts threatened with closure has been led by individual magistrates and judges far more effectively in their local press than by the M.A. pontificating from on high. Of course J.P.s run the risk of drawing fire from the Ministry of Justice or one of its associated bodies if they stray too far into certain areas. From my own experiences of professional bodies negotiating with government departments the negotiators often begin to act, talk and behave like the civil servants with whom they`re dealing to the detriment of the cause they are supposed to be espousing.

The long established magistrate blogger Bystander broadcast on 5 Live last week under his own name in a debate with Louise Casey on the subject of a defendant`s right to choose in either way matters touching on whether all or some E/W matters should be abolished and/or whether the right to choose mode of trial should be abolished for defendants. He made it perfectly clear he was speaking for nobody but himself. No doubt he was selected because of his high public profile. Any reader here will know that I am firmly of the opposing view and that the right to choose is an anachronism which could and should be jettisoned from our trial system with no resulting reduction in the quality of justice from a bench of three cf a jury chosen at random. 

However the M.A. cannot and should not seek to stifle individual opinion. Only when it becomes truly a representative body for Justices of the Peace will individuals consider that there is no need for them to make an individual contribution. Until then………………………… 

LOCAL COURTS AND LOCAL FOIBLES

 

by TheJusticeofthePeace @ 08. Nov. 2010. – 09:27:52

The recent appeal in the case of Bobby Cooper Appellant/Defendant- and -Wrexham Magistrates Court should in my opinion be compulsive or should that be compulsory reading for all J.P.s. The essence of the judgement was that the L/A had overstepped the boundary between his duty of providing legal advice and guidance to his bench and the finding of fact by the bench. The result was that an appeal against verdict was allowed.

Legal advisors like all highly qualified skilled workers practise their profession in their own idiosyncratic manner within the limits of their expertise. Generally speaking I hold them in high regard. They have to cope with many hundreds of individuals from varied backgrounds with whom they might in the fullness of years strike up a working relationship built on mutual respect and understanding. They have to cope in the main with chairmen who talk over much or behave as if they were a latter day Judge Deed. They have to carry along and support those who wish to involve themselves as little as possible in the running of their court and whose ability in the retiring room perhaps leaves something to be desired. And it is in the retiring room that problems can occur.

The appeal mentioned above was last week. But it immediately reminded me of a situation during the winter when the building`s ancient heating system finally died. There were the three of us in a cold retiring room one male and two females my lady colleagues being sensible enough to have worn coats to court that morning and now in the confines of the retiring room they had put them round their shoulders in an attempt to insulate themselves against the low temperature which would have had paid workers in the streets shouting it was against their human rights to work at what seemed like 32*F. We had a guilty plea on a class A possession and were considering her sentence. Maxine was a well spoken mid twenties heroin addict long since fallen from grace who had last been in our presence for the same offence when she had been convicted five months previously. We therefore did not require any further information from probation other than that she had so far been attending all appointments for her six month drug rehabilitation programme contained within a supervision order. My colleagues were of the opinion that a similar new six month DRR would be onerous enough and relatively heavier than the preceding sentence. I maintained that an element of punishment should be incorporated in the sentence eg curfew to indicate that similar repeat offending in such short a time frame was unacceptable. At this point our very able L/A attended having waited the instructed ten minutes requested by our chairman who was now visibly shivering. Our sentencing discussion became quite heated but positions were entrenched and the majority carried the day as it always must.

Later that day when we were alone discussing that sentence the L/A made it quite clear to me that he considered that my colleagues were incorrect insofar as a structured sentencing approach should not have considered that in effect an increased DRR was more onerous and therefore constituted an additional punishment element that I had criticised as being lacking. But, he was quick to point out, it was a lawful disposal and it was not for him to comment further. 

I had occasion last year to ask a newly appointed L/A who casually sat with us as we opened our discussion after a trial and with whom none of us had ever previously officiated to leave us and return when we rang for her. She replied that in her previous post it was commonplace for L/As to sit in at such times and contribute when required or requested. So it appears that in certain circumstances magistrates` courts are still “local” with local practices and local foibles. 

Roll on 2012 when many court amalgamations will have been implemented and I`m sure there will be many more such scenarios of, “that`s the way we`ve been doing this for years”.