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”.